Chapter 1

What will we study in this chapter?

After having worked through this chapter you should be able to

1) provide your own definition of statutory interpretation as a subject of study

2) explain why statutes cannot be interpreted in a mechanical or rule-like fashion

3) discuss the two different meanings of the phrase “interpretation of statutes”

4) explain how Christo Botha structures the many rules and principles of statu-

tory interpretation in his textbook

What is the central question to be answered?

There are various possible approaches to the interpretation of the statutes, based

On the way the different rules and principles of statutory interpretation are

Organised. And there are as many ways of organising these rules and principles as

There are legal textbooks on the market. The important question to ask before we

Start using our textbook is how the author, Professor Christo Botha, has chosen to
Organise the rules and principles of statutory interpretation. What is more, we need

To understand why he decided to organise the rules and principles of statutory

Interpretation in this particular way. In other words, which theoretical assumptions

(or philosophical approach) are embodied in the textbook we are about to use?

These are some of the questions that we will explore in this introductory chapter.

WHAT IS THE INTERPRETATION OF STATUTES?

In paragraph 1.2 Botha supplies a definition of statutory interpretation and

Discusses the reasons why the interpretation of statutes (legislation) is not a

Mechanical or rule-bound activity.

1.1 Legislation as source of law

1.2

In order to understand and apply the rules, principles and

Canons required to interpret legislation (Part 2), lawyers

Need to be proficient in the technical ‘black letter’ or ‘nuts

And bolts’ aspects of legislation explained in Part 1. These

Aspects include the various types and categories of

Legislation, the structural parts or components of legislation,

And the sometimes confusing ‘codes’ used in legislative texts,

As well as the challenging interrelationship between existing

Old order legislation and new post-1994 laws.

The law consists of all forms of law (common law, statute

Law, indigenous (customary) law, case law), while a law is a

Written statute enacted by those legislative bodies which

Have the authority to make laws.

Legislation (‘enacted law-texts’ or statute law)

Comprises all the different types of enacted legislation, such

As Acts of Parliament, provincial legislation, municipal by-

Laws, proclamations and regulations. An Act (upper case)

Refers to a parliamentary statute or the legislation of a

Provincial legislature (wet). An act (lower case) refers to

Conduct or action (optrede or handeling) such as the act of a

Government official or an organ of state.

The common law is composed of the rules of law which

Were not originally written down, but came to be accepted as

The law of the land. The common law is made up of the

Underlying original or basic legal principles. South African

Common law is known as Roman-Dutch law and most of it

Originated during the seventeenth century in the erstwhileprovince of Holland.

Common law needs to be distinguished from

Codifications, which are statutory compilations of all the legal

Principles

Page 4
Relating to a particular branch of the law (eg a criminal

Code). The common law may be changed by original

Legislation, but if there is no statutory law on the

Subject, the common law applies.

Indigenous law refers to the traditional law of the

Indigenous black people of South Africa. This may either be

Unwritten customary law, or codified (statutory

Compilations).

Case law (also referred to as ‘judicial precedent’) is the

Law as various courts in specific cases before them have

Decided on it. (For law students, the term ‘case law’ usually

Refers to those cases they had to read, but did not, and had

To discuss in the examination, and could not!) The precedent

System (also known as stare decisis) means that judgments

Of higher courts bind lower courts and courts of equal status.

Statute law (legislation) plays an ever-increasing role in

Common-law legal systems. In the past, legislation may have

Been viewed as exceptions to the common law, but the rapid

Changes in modern society have stretched the adaptability of

Common-law rules to their limits. Since the common law

Cannot deal with the regulation of new technological and

Scientific developments such as electronic funds transfers,

Stem cell research and cross-border human trafficking (to

Name only a few), more and more legislative intervention is

Necessary and inevitable. As a result, legislation is the most

Important source of new law in most modern societies.

In South Africa there is, of course, a more fundamental

Reason for a thorough understanding of the technical aspects

Of legislation. In a strictly legalistic sense apartheid was an

Ideologically underpinned and public-law driven system,

Based on a web of interlocking legislation. The dismantling of

This legal edifice not only requires an excellent knowledge of

Statute law, but a great deal of new legislation is needed to

Remedy the situation in the new constitutional dispensation.

1.3 THE NEW CONSTITUTIONAL ORDER

1.4

In paragraph 1.3 Botha describes the recent history of statutory interpretation. He

Focuses on the fact that a new method of statutory interpretation has been

Introduced by the new constitutional order. This is a key statement and a central

Theme of the whole textbook. Botha returns to it frequently. Why Botha says that a

New and uniform method was introduced by the new Constitution and what that

Method entails are discussed in more detail in chapter 5, especially in paragraph 5.3.
You must study paragraph 1.3 together with paragraph 5.3 of the textbook.

For now, simply read through paragraph 1.3 and identify at least four characteristics

Of statutory interpretation in the era immediately before 1994. You will use this list

Later on to compare the positions before and after 1994.

1.2 What is interpretation of statutes?

Interpretation of statutes, or perhaps more precisely, the

Juridical understanding of legislation, deals with those rules

And principles which are used to construct the correct

Meaning of legislative provisions to be applied in practical

Situations. Du Plessis (2002: 18) explains it as follows:

[S]tatutory (and constitutional) interpretation is about construing enacted

Law-texts with reference to and reliance

Page 5

On other law-texts, concretising the text to be construed so as to cater for

The exigencies of an actual or hypothesised concrete situation.

In other words, it is about making sense of the total relevant

Legislative scheme applicable to the situation at hand.

But why do we need special rules of interpretation?

Lawyers all have (or should have!) the necessary language

Skills to read and understand legislation. You just read the

Legislation carefully and apply it to the situation at hand.

How difficult can it be? Should you encounter an ambiguity

In the text, you can always use a dictionary. However, it is

Not that simple. Interpretation of legislation requires more

Than a mere reading of the provisions. It is not a mechanical

Sequence of join-the-dots or painting-by-numbers.

For example:

During the 1950s Professor Lon Fuller (1958: 664)provided a very interesting hypothetical
example to

Illustrate the inherent difficulties of language

(words) in legislation. At the same time he asked

Uncomfortable questions about issues such as

Morality, poverty and power (in other words, value

Judgements). Suppose a law is passed that states

That it is a criminal offence to sleep in any railway

Station. Common sense tells us that the law is

Intended to prevent homeless people (vagrants or

Squatters or tramps) from using railway stations as

Shelters. Two men appear in court on a charge of

Contravening the law in question. One man is a

Regular commuter who sat upright, but dozed off

While waiting for the train; the other man, who

Brought a blanket to the station and settled down

For the night on one of the benches, was arrested

While still fully awake. How should the court

Interpret and apply the legislation? Surely the court

Cannot read the legislation in a literal sense. If not,

Why not? After all, the words are clear—or are

They? What about the historical background and

Other surrounding circumstances? How much of

These may the court take into consideration? All of

A sudden interpretation of statutes is not that

Simple and straightforward any more.

Page 6

Another example, closer to home:

Take s 11 of the Bill of Rights in the Constitution as

An example. It reads: ‘Everyone has the right to

Life.’ Does the supreme Constitution guarantee immortality? That is absurd, since we all know
that

It a biological impossibility. But, then, what does s

11 mean? Since ‘the right to life’ forms part of an

‘enacted law-text’ (the Constitution), how do the

Courts interpret it? In S v Makwanyane 1995 (3) SA

391 (CC) the Constitutional Court held that the

Right to life means that the state may not take a

Person’s life in retribution, and the death penalty

Was declared unconstitutional. Does this decision

Mean that a person may not be killed in self-

Defence? Not at all: In Makwanyane and Ex parte

Minister of Safety and Security: In re S v Walters

2002 (4) SA 613 (CC) the Constitutional Court held

That the existing right to kill a person in self-

Defence was not abolished by the Constitution. On

The other hand, the decision of the Constitutional

Court in Soobramoney v Minister of Health,

Kwazulu-Natal 1998 (1) SA 765 (CC) effectively

Means that the constitutional right to life does not

Mean the state has a duty to keep all terminal

Patients alive in all circumstances. Furthermore, in

Carmichele v Minister of Safety and Security 2001

(4) SA 938 (CC) the Constitutional Court linked the

Constitutional rights to life and the freedom and

Security of the person to the constitutional duty

Imposed on the state and all of its organs not to

Perform any act that infringes these rights. Now the

Phrase ‘Everyone has the right to life’ does not

Seem so simple and unambiguous anymore! This

Simple example makes it clear that there is more to

Interpretation of legislation than reading and

Spelling skills, and words, phrases and grammar.

The supreme Constitution, the context of

Legislation, and competing human rights and

Fundamental values also form part of this process: a very intricate, nuanced and multi-faceted
process.

Du Plessis (1999: 230) explains this aspect very

Well:

One cannot understand a legal text merely by concentrating on

Its language. You must also understand how law works and

What it seeks to achieve in order to understand how it

Communicates with you and what it wants to tell you.

Page 7

In the British case of Corocraft Ltd v Pan American Airways

Inc. [1968] 3 WLR 714 732 Donaldson J explained

Interpretation of legislation as follows:

In the performance of this duty the judges do not act as computers into

Which are fed the statutes and the rules for the construction of statutes and

From which issue forth the mathematically correct answer. The interpretation

Of statutes is a craft as much as a science and the judges, as craftsmen,

Select and apply the appropriate rules as the tools of their trade. They are not

Legislators, but finishers, refiners and polishers of legislation which comes to

Them in a state requiring varying degrees of further processing.

The interpretation of legislation is not a mechanical exercise

During which predetermined formulae, well-known maxims

And careful reading will reveal the meaning of the legislative

Provision. Technical aspects (eg the structure of the

Legislation and language rules) must be applied in

Conjunction with substantive aspects (eg constitutional

Values and fundamental rights). Apart from the inherent

Difficulties of language and meaning, the interpreter has to

Keep a number of other related issues in mind:

The provision must be read, understood and applied

Within the framework of the supreme Constitution and the

Bill of Rights.

What is the impact of other legislation (eg the

Promotion of Access to Information Act 2 of 2000, the

Promotion of Administrative Justice Act 3 of 2000 and the

Promotion of Equality and Prevention of UnfairDiscrimination Act 4 of 2000)?

Is the legislation that must be interpreted still in force?

If still in force, has it been amended since?

If, for instance, a provision in an Act of Parliament is to

Be interpreted, it must be read with the rest of the Act,

Including its definition section and possibly its schedules as

Well. Regulations may have been issued in terms of the

Particular provision, which have to read with the enabling

Legislation. Are those regulations valid?

What is the context (general background or

Surrounding circumstances) of the legislative text?

Other external aids (eg dictionaries or commission

Reports) may be used to establish the meaning of the

Legislation.

Sometimes the interpreter will be confronted by the

Results of poor drafting, conflicting provisions or a lack of

Resources to research the current law.

Page 8

Make no mistake: interpretation of legislation is not easy,

Quick or mechanical. It not only requires excellent language

Skills, but the interpreter must also have a very good

Knowledge of the law and where to find it. This means

Research: reading reported cases (lots of them!), finding and

Analysing the latest Acts and regulations, and keeping up to

Date with new developments in the law.

Practical example:
As has been pointed out, interpretation of statutes

Is not easy. Take a look at the definition of a

‘firearm’ in s 1 of the Firearms Control Act 60 of

2000:

In this Act, unless the context indicates otherwise— ‘firearm’ means any—

device manufactured or designed to propel a bullet or

projectile through a barrel or cylinder by means of burning

propellant, at a muzzle energy exceeding 8 joules (6 ft-

lbs);

...
What is muzzle energy of 8 joules (6 ft-lbs)? Muzzle
energy is the kinetic energy of the bullet when it
exits the barrel. To know the muzzle energy, you
need to know the muzzle velocity (the speed of the
bullet when it exits the barrel), the mass of the
bullet, and a lot of mathematics! Muzzle energy (in
ft-lbs) is calculated as follows: Muzzle velocity (in
feet per second)
2 d 450240 x bullet weight in
grains. One grain = .064789 gram, and one ft-lb
muzzle energy = 1.356 joule. Did the legislative
drafters know or understand this definition? Do you
think the prosecutors, legal practitioners and the
judiciary understand the definition? To cut a long
story short—there is more to interpretation of
legislation than merely glancing through the words
in the text!
Legalese
Bad drafting and legalese is another problem. ‘Legalese’
refers to the perplexing and specialised language (or social
dialect) used by lawyers in legal documents,
incomprehensible to the non-lawyer. Somebody once defined
it as ‘the language of lawyers that they would not use in
ordinary communications but for the fact that they are
lawyers’. It is characterised by wordiness, Latin expressions,
passive verbs, lengthy sentencesand legal doublets (stringing together two words to convey a
single legal concept such as null and void, fit and proper,
perform and discharge and terms and conditions). Why do
drafters use verbose language? Maybe it is part of a
professional mystique, compelling lawyers to write in a
complicated and learned style in order to maintain an aura of
profound importance. Lord Radcliffe (1950: 368) explained
the use of legalese as follows:
It seems to me that a sort of hieratic language has developed by which the
priests incant the commandments. I seem to see the ordinary citizen today
standing before the law like the laity in a medieval church: at the far end the
lights glow, the priestly figures move to and fro, but it is in an unknown
tongue that the great mysteries of right and wrong are proclaimed.
Yet despite the efforts of the advocates of more
understandable plain language in legal drafting, interpreters
still have to deal with convoluted language in legislation. Just
imagine you have to interpret the following provisions:
Section 1 of the Orange Free State Civil Protection
Ordinance 10 of 1977 was a somewhat ridiculous attempt to
define a ‘disaster’:
In this Ordinance, unless the context otherwise indicates—‘disaster’ means a
disaster or a state which is not a state of emergency or a state of disaster
and which, in the opinion of the Administrator or of the local authority
concerned, is a disaster, as defined in section 1 of the Act, or is likely to
develop into such a disaster;
Or even worse, another potential tongue-twister was s 1(4)
of the previous Labour Relations Act 28 of 1956:
The definition of ‘unfair labour practice’ referred to in subsection (1), shall not
be interpreted either to include or exclude a labour practice which in terms of
the said definition is an unfair labour practice, merely because it was or was
not an unfair labour practice, as the case may be, in terms of the definition of
‘unfair labour practice’, which definition was substituted by section 1(a) of the
Labour Relations Amendment Act, 1991: provided that a strike or lock-out
shall not be regarded as an unfair labour practice.
In an almost desperate attempt to make sense of s 22(1)(d)
and 22(1)(bb) of the Compulsory Motor Vehicle Insurance
Act 56 of 1972 (as amended several times), Botha JA in
SantamInsurance Ltd v Taylor 1985 (1) SA 514 (A) 523B and 526E
expressed himself as follows on the confusion:
In an attempt to escape from the prolixity which disgraces this piece of
legislation I shall take a number of short cuts when referring to its provisions
. . . In my opinion the man in the street would be at least as perplexed by the
language used by the legislature as is the man on the Bench who is writing
this judgment.
Clearly the judge was not impressed with the standard of
drafting and the legalese used in the legislation which it had
to interpret. As Botha & Bekink (2007: 34) point out, it is
not always easy to use so-called ‘plain language drafting’ in
legislation and other legal documents. However, even in
South Africa legislative drafters, legislatures and lawyers are
becoming more aware of the need to draft legal documents in
more understandable language.
Practical example:
Section 3(1)(b)(iv) of the Consumer Protection Act
68 of 2008 is a good example of an express
legislative acknowledgement of the link between
understandable language and access to justice:
3 Purpose and policy of Act
(1) The purposes of this Act are to promote and advance the
social and economic welfare of consumers in South Africa by—
...
reducing and ameliorating any disadvantages
experienced in accessing any supply of goods or services
by consumers—
...
whose ability to read and comprehend any
advertisement, agreement, mark, instruction, label,
warning, notice or other visual representation is
limited by reason of low literacy, vision impairment or
limited fluency in the language in which the
representation is produced, published or presented; What is in a name: purpose or intention?
As explained earlier, interpretation of statutes is about the
juridical understanding of legislation. The interpreter has to
determine what the legislation has to accomplish in the legal
order. Case law and most of the older sources refer to this as
Page 11
the ‘intention of the legislature’. Other sources prefer the
terms ‘purpose of the legislation’ or the legislative scheme,
and so on.
The term ‘intention of the legislature’ is closely linked to
the principle of sovereignty of parliament. Parliament was
the sovereign lawmaker in the Republic and legislation
reflected a parliamentary legislative intention. As one of the
influential proponents of the intention theory, Steyn (1980:
1) defined statutory interpretation as the process during
which the will or thoughts of the legislature are ascertained
from the words used by the legislature to convey that will or
thoughts.
But it is difficult to picture such a collective intention
exercised by all the members of a legislative body:
The legislature is composed of a large number of
persons, all of whom take part in the legislative process.
As part of the democratic legislative process some
members of the legislature may oppose the legislation for
various reasons, with the result that the adopted legislation
ultimately reflects the ‘intention’ of only the majority of the
legislature.
Some members will support legislation for the sake of
party unity, though they may be personally opposed to a Bill.
This means that the ‘intention’ of the legislature is subject to
what the individual members of the legislative body, underpressure from their party caucus, ‘had
to’ intend!
Parliamentarians are elected politicians, and they do
not necessarily understand the complex and technical
legislation which they adopt.
A Bill introduced in the legislature is not drafted by the
public representatives, but by legislative drafters and law
advisers acting on the advice of bureaucrats from various
state departments.
Some members of the legislative body may even be
absent when voting on draft legislation takes place.
To put it another way: the intention of the legislature refers
to the fictional collective intent of the majority of the
legislative body present at the time when the vote took
place, expressing their will within the constraints of the
voting guidelines laid down by the caucus of the ruling party
in the legislature, and voting for draft legislation—formulated
by legal drafters on the advice of bureaucrats from a
government department—which had been approved earlier
by the state law advisors!
In the final analysis the correct interpretation of
legislation does not depend on which term is used. What is
important,
Page 12
though, is how that purpose (or intention or legislative
scheme or aim of legislation) is ascertained and construed.
The correct way to interpret legislation is discussed in
greater detail in Part 2 of this book.
1.3 The new constitutional order
For many years statutory interpretation was the Cinderella of
South African jurisprudence. During the late 1970s and the
1980s in particular, the unsystematic application of the rulesand principles of statutory
interpretation was criticised by
academics. Traditionally, interpretation of statutes in South
Africa was saddled with unnecessary (and unacceptable)
baggage: a confusing system of maxims and canons of
interpretation, tentative principles, a golden rule, overriding
principles, so-called primary, secondary and tertiary rules,
manifest and clear meanings, rules of Roman-Dutch law
influenced by English law, misconceptions about the
structure and meaning of language, exceptions to the rule,
as well as differences of opinion about how the so-called
intention of the legislature should be ascertained. The
acceptance and legitimacy of the new supreme Constitution
may have been compromised if the application of the
fundamental rights was hampered by the orthodox
interpretation of ‘ordinary’ legislation.
A supreme constitution is the highest law (lex
fundamentalis) in the land. Although parliament remains the
highest legislative body in a system of government with a
supreme constitution, any legislation or act of any
government body (including parliament) which is in conflict
with the constitution will be invalid. However, constitutional
supremacy does not imply judicial supremacy. The courts are
also subject to the constitution and merely act as the final
guardians of the values and principles embodied in the
constitution.
Traditionally, the South African rules of statutory
interpretation were based on the sovereignty of Parliament.
In such a system, Parliament is not only the highest
legislative body, capable of enacting any laws it wishes, but
no court may test the substance of parliamentary Acts
against standards such as fairness or equality. This was the
system of government which operated in South Africa before
the interim Constitution took effect. In 1992 Devenish
(1992: 290-291) articulated the need for a new method of
statutory interpretation in a constitutional democracy asfollows (emphasis added):
Page 13
The constitutional doctrine of parliamentary sovereignty, the jurisprudence of
positivism, and the political hegemony of Afrikaner Nationalism have greatly
influenced the methodology and theory of interpretation in South Africa.
Steyn’s advocacy of the subjective or intention theory of interpretation
facilitated a sympathetic interpretation of apartheid and draconian security
legislation . . . [T]he demise of the apartheid state and the emergence of a
new political and legal order involving a negotiated and legitimate constitution
with a entrenched and justiciable bill of rights must of necessity influence the
process and theory of interpretation. The courts will be able, in the new
constitutional and political dispensation, (which will of necessity be cleansed of
all race discrimination laws) to exercise their powers to test and invalidate
legislation. In order to do this all statute law will have to be interpreted to be
compatible with the letter and the spirit of the constitution. This means that a
value-coherent theory of interpretation should become increasingly prevalent.
In effect the introduction of a justiciable bill of rights is likely to herald a new
methodology and theory of interpretation of statutes.
On 27 April 1994 the Constitution of the Republic of South
Africa 200 of 1993 (hereafter ‘the interim Constitution’)
came into operation. Apart from its constitutional
implications and political ramifications, it also changed the
interpretation of statutes as we knew it. Not only was the
principle of parliamentary sovereignty replaced by
constitutional supremacy, but the interpretation clause stated
that the spirit and purport of the fundamental rights had to
be taken into account during the interpretation of statutes.
In other words, the courts can no longer ignore value
judgements. Since the commencement of the interim
Constitution, even the rules of statutory interpretation have
been influenced by the new constitutional order. The critical
questions asked by academics were no longer theoretical
reflections. Suddenly the correct method of statutory and
constitutional interpretation formed the centre of the debate
about the protection of fundamental human rights!
On 4 February 1997 the Constitution of the Republic of
South Africa, 1996 (hereafter ‘the Constitution’) came intooperation. Those principles of the
interim Constitution which
transformed statutory interpretation were retained in the
Constitution of 1996. Apart from the constitutional values,
the interpretation of statutes was transformed by six
provisions of the Constitution in particular: s 1 (the
foundational provision); s 2 (the
Page 14
supremacy clause); s 7 (the obligation clause); s 8 (the
application clause); s 36 (the limitation clause) and s 39 (the
interpretation clause). These provisions, as well as the
constitutional values, are discussed fully in later chapters.

5.3 South African theories of

interpretation
For the purpose of this part the various theories and
approaches to interpretation in South Africa will be
condensed into two main approaches to (or schools of
thought about) interpretation of legislation: the text-based
approach and the text-in-context approach; next the
influence of the supreme Constitution and the new
constitutional order on interpretation of legislation will be
explained; and finally an inclusive methodology based on the
five aspects of interpretation will be suggested for a practical
interpretation methodology.
5.3.1 The orthodox text-based approach

In terms of this approach the interpreter should concentrate

Primarily on the literal meaning of the provision to be

Interpreted, and the interpretation process should proceed

Along the following lines:

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

(Principal Immigration Officer v Hawabu 1936 AD 26).

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 (Venter v R 1907 TS 910

914). This is also known as the ‘golden rule’ of

Interpretation. Then the court will turn to the so-called

‘secondary aids’ to interpretation to find the intention of the

Legislature (eg the long title of the statute, headings of

Chapters and sections, the text in the other official language,

Etc).

Only when these ‘secondary aids’ to interpretation

Prove insufficient to ascertain the intention, will the courts

Have recourse to the so-called ‘tertiary aids’ to construction

(ie the common-law presumptions).

This approach was popular in legal systems

Influenced by

Page 92
English law. Generally speaking, four factors led to the

Adoption of the textual approach in England:

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 recorded in thetext of the particular legislation. In
other words, the will of

The legislature is to be found in the words of the legislation.

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 consequently 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 and to find the

Intention of the legislature, and should not be a speculation

About what the law ought to be. A strict distinction is made

Between ‘black-letter law’ and morality, because value

Judgements by the courts would lead to the justiciability of

Policy issues.

England has a common-law tradition, in which the

Courts have traditionally played a very creative role in regard

To common-law principles. Legislation was viewed as the

Exception to the rule, altering the traditional common law as

Little as possible.

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.

This text-based approach was introduced into the South

African legal system in a roundabout way from English law.

In De Villiers v Cape Divisional Council 1875 Buch 50, Chief

Justice De Villiers decided that legislation that had been

Adopted after the British had taken over the Cape should be

Interpreted in accordance with the English rules of statutory

Interpretation. This was a strange decision: in terms of

English law, a conquered territory continued to apply its own

Legal system (in this case, Roman-Dutch law). 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 law rulesof interpretation started to play an
increasingly important

Role.

Page 93

The text-based methodology is based on the

‘predominance of the word’, and the intention of the

Legislature is demoted to the status of the literal meaning of

The text. Over the years the courts came to regard the clear,

Literal meaning as identical to what the legislature intended.

In cases such as Union Government v Mack 1917 AD 731 and

Farrar’s Estate v CIR 1926 TPD 501 it was held that the

Intention of the legislature should be deduced from the words

Used in the legislation; in other words, the plain meaning of

The text in an intentional disguise. As a result, only lip-

Service was paid to the principle of legislative intent, because

The 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 (eg Ensor v Rensco Motors

(Pty) Ltd 1981 (1) SA 815 (A)).

Case law examples:

The following dictum of Stratford JA in Bhyat v

Commissioner for Immigration 1932 AD 125 129 is

Probably the classic formulation of the orthodox

Text-based method of interpretation employed by

South African courts:

The cardinal rule of construction of a statute is to endeavour to

Arrive at the intention of the lawgiver from the language

Employed in the enactment . . . in construing a provision of an

Act of Parliament the plain meaning of its language must be

Adopted unless it leads to some absurdity, inconsistency,

Hardship or anomaly which from a consideration of the

Enactment as a whole a court of law is satisfied the Legislaturecould not have intended.

The Appellate Division in Swanepoel v

Johannesburg City Council 1994 (3) SA 789 (A)

794B again referred with approval to the orthodox

‘plain meaning’ approach to statutory

Interpretation:

[T]he rules of statutory [exegesis] are intended as aids in

Resolving any doubts as to the Legislature’s true intention.

Where this intention is proclaimed in clear terms either expressly

Or by necessary implication the assistance of these rules need

Not be sought.

Page 94

More recently in Commissioner, SARS v Executor,

Frith’s Estate 2001 (2) SA 261 (SCA) 273 the

Supreme Court of Appeal reiterated the well-known

Traditional rule of interpretation:

The primary rule in construction of a statutory provision is (as is

Well established) to ascertain the intention of the legislator and

(as is equally well established) one seeks to achieve this, in the

First instance, by giving the words 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.

These three judgments have two things in common: all three

Emanate from the Appellate Division/Supreme Court of

Appeal, and all three were based on a formalistic and text-

Based view of statutory interpretation. The foundations of a

Text-based (literal) method of interpretation are many: legal

Positivism (the essence of law is in the decree, and law and

Morality should be separated), sovereignty of Parliament

(the will of Parliament is expressed in the legislation), as wellas certain formalistic ideas about
law, language and

Understanding. Bhyat is understandable: it was decided

During the era of sovereignty of Parliament, sixty-odd years

Before the commencement of a new constitutional order

Under a supreme and justiciable constitution. Perhaps we can

Condone Swanepoel as well, since judgment was given on 27

May 1994, exactly one month after the interim Constitution

Took effect. However, Frith’s Estate was decided four years

After the 1996 Constitution took effect, or roughly seven

Years into the new constitutional era: after Qozeleni v

Minister of Law and Order 1994 (3) SA 625 € and Matiso v

Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592

(SE) and S v Makwanyane (above) and a host of other

Influential decisions by the High Courts and the

Constitutional Court.

Criticism of the text-based (literal) approach to statutory

Interpretation may be summarised as follows:

In the first instance, the normative role of the

Common-law presumptions during the interpretation process

Is reduced to a mere ‘last resort’, to be applied only if the

Legislative text is ambiguous.

Another point of criticism of this narrow approach is

That words (their literal meaning) are regarded as the

Primary

Page 95

Index to legislative meaning. According to the court in

R v Hildick-Smith 1924 TPD 68 81—

There is only one kind of interpretation with one definite object, and that

Is to ascertain the true intention of the legislature as expressed in the

Act.

Other important internal and external aids to

Interpretation, which could be applied to establish the

Meaning of text-in-context, are ignored. The context of the

Legislation is only used if the text is not clear. Unless thetextual meaning is ambiguous or
unclear, the interpreter will

Not have recourse to the wide range of aids to interpretation

At his disposal.

As a result, the ‘intention of the legislature’ is

Ultimately dependent on how clear the language used in the

Legislation may be to the particular court!

Very few texts are so clear that only one final

Interpretation is possible. The mere fact that a discipline such

As interpretation of statutes exists would, by implication,

Suggest that legislation is seldom clear and unambiguous.

The text-based approach leaves very little room for

Judicial law-making, and the courts are seen as mere

Mechanical interpreters of the law (the so-called ‘his master’s

Voice’ role). This view creates the impression that once the

Legislature has spoken, the courts cease to have any law-

Making function. According to the text-based approach, 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, except in very

Exceptional cases, where the courts deviate from ‘the literal

Meaning’ of the legislation to apply some sort of corrective

Interpretation. Generally speaking, it is the function of the

Legislature to correct omissions and bad drafting in

Legislation. The well-known maxims (iudicis est ius dicere sed

Non dare and the casus omissus rule) form the basis of the

General principle that no addition to or subtraction from the

Legislative text is possible. According to the maxim iudicis est

Ius dicere sed non dare it is the function of the court to

Interpret and not to make the law (Harris v Law Society of

The Cape of Good Hope 1917 CPD 449). A rigid obsession

With this rule is the result of a misunderstanding of the

Separation of powers doctrine, with the result that this principle was conveniently used to

Justify the text-based approach to statutory

Interpretation. The casus omissus rule (courts may not

Supply omissions in legislation) is also derived from the

Principle that the function of the courts is to interpret

Law and not to make it (Ex Parte Slater, Walker

Securities (SA) Ltd 1974 (4) SA 657 (W)).

Case law examples:

Within the confines of sovereignty of Parliament

Prior to 1994, which resulted in a blinkered ‘his

Master’s voice’ role of the judiciary, the application

Of an orthodox text-based approach had another,

Darker side. In the absence of a justiciable bill of

Rights under apartheid rule, the clear, plain meaning

Of obnoxious legislation not only became the

Justification for executive-minded decisions by the

Courts, but was also used as a convenient excuse

For avoiding inconvenient moral dilemmas, as two

(in)famous cases dealing with the Group Areas Act

36 of 1966 illustrate.

The following remark of King J in S v Adams

1979 (4) SA 793 (T) 801 illustrates the moral

Dilemma of a judge trapped in the ‘black-letter’

Confines of parliamentary sovereignty, and

Confronted by the harsh effects of the letter of the

Law:

An Act of Parliament creates law but not necessarily equity. As a

Judge in a Court of law I am obliged to give effect to the

Provisions of an Act of Parliament. Speaking for myself and if I

Were sitting as a court of equity, I would have come to the

Assistance of the appellant. Unfortunately, and on an

Intellectually honest approach, I am compelled to conclude that the appeal must fail.
On the other hand, Holmes JA in Minister of the

Interior v Lockhat 1961 (2) SA 587 (A) 602 clearly

Did not experience the same ethical soul-searching

In deciding whether to follow the ‘plain meaning’ of

The legislation (emphasis added):

Page 97

The Group Areas Act represents a colossal social

Experiment and a long term policy. It necessarily

Involves the movement out of Group Areas of

Numbers of people throughout the country.

Parliament must have envisaged that compulsory

Population shifts of persons occupying certain areas

Would inevitably cause disruption and, within the

Foreseeable future, substantial inequalities.

Whether all this will ultimately prove to be for the

Common weal of all the inhabitants, is not for the

Court to decide . . . the question before this Court is

The purely legal one whether this piece of legislation

Impliedly authorises, towards the attainment of its

Goal, the more immediate and foreseeable

Discriminatory results complained of in this case. In

My view . . . it manifestly does.

This text-based approach was the predominant approach to

Interpretation in South Africa prior to 1994, and regrettably

Many of the courts still follow the traditional plain meaning

Approach. In Public Carriers Association v Toll Road

Concessionaries (Pty) Ltd 1990 (1) SA 925 (A) 934JSmalberger 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.

5.3.2 The text-in-context approach

The legislative function is a purposive activity. In terms of

The text-in-context approach, the purpose or object of the

Legislation (the legislative scheme) is the prevailing factor in

Interpretation. The context of the legislation, including social

And political policy directions, is also taken into account to

Establish the purpose of the legislation.

In contrast to the exaggerated emphasis on the legislative

Text, the mischief rule (see 6.4.4 below) is regarded as the

Forerunner of a text-in-context approach to interpretation

(Du Plessis 2002: 96). The mischief rule acknowledges the

Application of external aids: the common law prior to the

Enactment of the legislation, defects in the law not provided

For by the common law, whatever new remedies (solutions)

The legislature provides, and the true reason for the

Remedies. The search for the purpose of legislation requires a

Purpose-orientated approach which recognises the contextual

Framework of the legislation right from the outset, and not

Only

Page 98

In cases where a literal, text-based approach has failed. The

Text-in-context approach provides a balance between

Grammatical and overall contextual meaning. The

Interpretation process cannot be complete until the object

And scope of the legislation (ie its contextual environment)

Are taken into account. In this way the flexibilities and

Peculiarities of language, and all the intra-textual and extra-

Textual factors, are accommodated in the continuing timeframe within which legislation
operates.

Case law example:

In his famous minority decision in Jaga v Dönges

1950 (4) SA 653 (A), Schreiner JA identified the

Following guidelines for interpretation of statutes:

Right from the outset the interpreter may

Take the wider context of provision (eg its ambit

And purpose) into consideration with the legislative

Text in question.

Irrespective of how clear or unambiguous the

Grammatical meaning of the legislative text may

Seem to be, the relevant contextual factors (eg the

Practical effects of different interpretations, as well

As the background of the provision) must be taken

Into account.

Sometimes this wider context may even be

More important than the legislative text.

Once the meaning of the text and context

(language in context) 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 first concrete efforts in South African law

To utilise the wider context to move beyond the plain

Grammatical meaning to ascertain the legislative purpose.

After that, a few courts were more prepared to interpret the

Text of legislation in the light of the wider contextual

Framework.

During the 1970s Cowen (1976 and 1980) started to

Question the theoretical foundations of literalism and the‘intention of the legislature’.

Unfortunately, this process of

Change proved slow, with progression alternating with

Regression. In University of Cape Town v Cape Bar Council

1986 (4) SA 903 (A) Rabie CJ held that the court had to

Examine all the contextual factors in ascertaining the

Intention of the

Page 99

Legislature, irrespective of whether or not the words of the

Legislation were clear and unambiguous.

According to the text-in-context approach, the judiciary

Has inherent law-making discretion during statutory

Interpretation; although an exception to the rule, the courts

May modify or 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, and is not limited to

Mere textual analysis and mechanical application of the

Legislation. However, this discretion is qualified by the

Prerequisite that modification of the meaning of the text is

Possible (and admissible) only if and when the scope and

Purpose of the legislation is clear and supports such a

Modification. Such a 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 and application of the relevant

Legislation in each practical instance. For the text-in-context

Approach the use of the common-law presumptions, as well

As all the various aids to interpretation, are very important

Tools in the quest for the scope and purpose of legislation.

5.3.3 The influence of the supreme Constitution

Although most academics in South Africa before 1994

Propagated a text-in-context (purposive) method of statutory

Interpretation that recognised the vital importance of thelegislative context, few of the courts
actually adopted a less
Formalistic approach to interpretation. However, since 27

April 1994 the (largely academic) debate about a text-based

Approach versus a text-in-context approach to statutory

Interpretation has become irrelevant. Since both the

Interim Constitution (s 35(3)) and the 1996 Constitution (s

39(2)) included an express and mandatory interpretation

Provision, statutory interpretation (like all law in South

Africa) now has to be conducted within the value-laden

Framework of the supreme Constitution which is the highest

Law of the land. Apart from the constitutional values, the

Interpretation of statutes was transformed by six provisions

Of the Constitution, in particular: s 1 (the foundational

Provision); s 2 (supremacy of the Constitution); s 7 (the

Obligation clause); s 8 (the application clause); s 36 (the

Limitation clause) and s 39 (the interpretation clause).

Constitutional supremacy

Section 1 of the Constitution is the foundational clause:

Page 100

The Republic of South Africa is one, sovereign, democratic state founded on

The following values:

Human dignity, the achievement of equality and the advancement

Of human rights and freedoms.

Non-racialism and non-sexism.

Supremacy of the constitution and the rule of law.

Universal adult suffrage, a national common voters roll, regular

Elections and a multi-party system of democratic government, to

Ensure accountability, responsiveness and openness.

Section 2 is the constitutional supremacy clause. According

To Du Plessis (1997: 812) s 1© (referring to the supremacy

Of the Constitution and the rule of law) merely anticipates

The supremacy of the Constitution; s 2 unambiguously

Confirms it:

This Constitution is the supreme law of the Republic; law or conduct

Inconsistent with it is invalid, and the obligations imposed by it must befulfilled.

Section 2 must be read with s 7 of the Constitution, which

States that the Bill of Rights is the cornerstone of the South

African democracy, and that the state must respect, protect,

Promote and fulfil the rights in the Bill of Rights, s 8(1),

Which states that the Bill of Rights applies to all law, and

Binds the legislature, the executive, the judiciary and all

Organs of state, as well as s 8(2), which provides that the Bill

Of Rights applies to both natural and juristic persons; and s

237, which states that all constitutional obligations must be

Performed diligently and without delay. If all these provisions

Are read together, one principle is indisputable: the

Constitution is supreme, and everything and everybody are

Subject to it. This means that the Constitution cannot be

Interpreted in the light of the Interpretation Act or the

Roman-Dutch common law or traditional customary law.

Everything and everybody, all law and conduct, all cultural

Traditions and legal dogmas and religious perceptions, all

Rules and procedures, and all theories, canons and maxims of

Interpretation are influenced and ultimately qualified by the

Constitution. In Holomisa v Argus Newspapers Ltd 1996 (2)

SA 588 (W) 618 Cameron J summarised this principle very

Well:

The Constitution has changed the ‘context’ of all legal thought and decision-

Making in South Africa.

The interpretation clause

Section 39(2) of the Constitution (the interpretation of

Statutes in general) provides:

Page 101

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 39(2) deals with the interpretation of legislation

Other than the Bill of Rights. The Constitution does notexpressly prescribe a contextual
(purposive) approach to
Statutory interpretation. However, s 39(2) is a peremptory

Provision, which means that all courts, tribunals or forums

Must review the aim and purpose of legislation in the light of

The Bill of Rights: plain meanings and so-called clear,

Unambiguous texts are no longer sufficient. Even before a

Particular legislative text is read, s 39(2) ‘forces’ the

Interpreter to promote the values and objects of the Bill of

Rights. This inevitably means that the interpreter is

Consulting extra-textual factors before the legislative text is

Even considered. Factors and circumstances outside the

Legislative text are immediately involved in the

Interpretation process. In short, interpretation of statutes

Starts with the Constitution and not with the legislative text!
Is this a typical academic flight of fancy? No, I am merely

Quoting the Constitutional Court: Ngcobo J said the following

In Bato Star Fishing (Pty) Ltd v Minister of Environmental

Affairs and Tourism 2004 (4) SA 490 (CC) paras 72, 80 and

90 (emphasis added):

The Constitution is . . . the starting point in interpreting any legislation. . . .

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 capable of such interpretation . . .

The emerging trend in statutory construction is to have regard to the context

In which the words occur, even where the words to be construed are clear

And unambiguous.

In Investigating Directorate: Serious Economic Offences v

Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor

Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC) para 21

Langa DP explained the constitutional foundation of this

‘new’ interpretation methodology as follows (emphasis

Added):

Section 39(2) of the Constitution . . . means that all statutes must be

Interpreted through the prism of the Bill of Rights. All law-making authority

Must be exercised in accordance with the Constitution. The Constitution is

Located in a history which involves a transition from a society based on

Division, injustice and exclusion from the democratic process to one which

Respects the dignity of all citizens, and includes all in the process ofgovernance. As such, the
process of

Page 102

Interpreting the Constitution must recognise the context in which we find

Ourselves and the Constitution’s goal of a society based on democratic

Values, social justice and fundamental human rights. This spirit of transition

And transformation characterises the constitutional enterprise as a whole.

Constitutional values

As was explained earlier, the traditional South African

Approach to statutory interpretation was characterised by a

Strict devotion to the legislative text, and by the sovereignty

Of Parliament. Now the supreme Constitution, underpinned

By universally accepted values and norms, is the

Fundamental law of the land. It is the ultimate value-laden

Yardstick against which nearly everything is viewed and

Reviewed. To quote Mokgoro J in S v Makwanyane (above)

498H-I:

With the entrenchment of the Bill of Fundamental Rights and Freedoms in a

Supreme Constitution, however, the interpretive task frequently involves

Making constitutional choices by balancing competing fundamental rights and

Freedoms. This can often only be done by reference to a system of values

Extraneous to the constitutional text itself, where these principles constitute

The historical context in which the text was adopted and which help to explain

The meaning of the text. The Constitution makes it particularly imperative for

Courts to develop the entrenched fundamental rights in terms of a cohesive

Set of values, ideal to an open and democratic society. To this end common

Values of human rights protection the world over and foreign precedent may

Be instructive.

The preamble to the Constitution refers to a society based on

Democratic values, social justice and fundamental human

Rights. What are these democratic values? They are, amongst

Others, freedom, equality and human dignity (s 7(1)), the

Achievement of equality, the advancement of human rights

And freedoms, non-racialism and non-sexism. Sections 36(1)

And 39(1) refer to an open and democratic society based on

Freedom, equality and human dignity. It appears as if these

Are the three core values on which the Constitution rests:freedom, equality and human dignity.
The spirit, purport and

Objects of the Bill of Rights have to be promoted during the

Process of statutory interpretation. In other words, the

Courts are the guardians and enforcers of the values

Underlying the Constitution. As a matter of fact, in terms of

The official oath of judicial officers (item 6(1) of Schedule 2

Of the Constitution)

Page 103

The courts have to uphold and protect the Constitution and

The human rights in it. This means that the courts will have

To make certain value judgements during the interpretation

And application of all legislation. Since the values underlying

The Constitution are not absolute, the interpretation of

Legislation is also an exercise in the balancing of conflicting

Values and rights. Consequently, the interpretation of

Statutes can no longer be a mechanical reiteration of what

Was supposedly ‘intended’ by Parliament, but is rather what

Is permitted by the Constitution.

The impact of constitutionalism

A supreme constitution is not merely another legislative

Document, but the supreme law (lex fundamentalis) of the

Land. A constitutional state (which has a supreme

Constitution) is underpinned by two foundations: a formal

One (which includes aspects such as the separation of

Powers, checks and balances on the government, and the

Principle of legality: in other words, the institutional power

Map of the country); and a material or substantive one

(which refers to a state bound by a system of fundamental

Values such as justice and equality). In S v Makwanyane

(above) para 262 the late Mahomed J referred to a supreme

Constitution in the following ringing tones (emphasis added):

All constitutions seek to articulate, with differing degrees of intensity and

Detail, the shared aspirations of a nation; the values which bind its people,

And which discipline its government and its national institutions; the basicpremises upon which
judicial, legislative and executive power is to be wielded;

The constitutional limits and the conditions upon which that power is to be
Exercised; the national ethos which defines and regulates that ethos; and the

Moral and ethical direction which that nation has identified for its future. In

Some countries, the Constitution only formalises, in a legal instrument, a

Historical consensus of values and aspirations evolved incrementally from a

Stable and unbroken past to accommodate the needs of the future. The

South African Constitution is different: it retains from the past only what is

Defensible and represents a decisive break from, and a ringing rejection of,

That part of the past which is disgracefully racist, authoritarian, insular, and

Repressive and a vigorous identification of and commitment to a democratic,

Universalistic, caring and aspirationally egalitarian ethos, expressly articulated

In the Constitution.

The preamble to the interim Constitution stated that the

Republic of South Africa is a constitutional state (regstaat),

But
Page 104

The Constitution of 1996 does not expressly refer to a

Constitutional state. Nevertheless, there are a number of

Provisions in the Constitution which imply a constitutional

State: the preamble refers to a society based on democratic

Values, social justice and fundamental human rights; s 1

States that South Africa is, amongst other things, a

Democratic state founded on the supremacy of the

Constitution and the rule of law; and s 7 entrenches the Bill

Of Rights as the cornerstone of the democracy. As the

Supreme law of the land, the Constitution not only deals with

The institutional structures of government and formal checks

On state power, but is first and foremost a value-laden

Document. It is underpinned by a number of express and

Implied values and norms. These fundamental principles are

Not only the ideals to which the South African society has

Committed itself, but they form the material (substantive)

Guidelines which must regulate all the activities of the state.

The spirit of the Bill of Rights (s 39(2)) is a reflection of

These fundamental principles. Apart from in the Constitution

Itself, these values are found in various sources: eg theprinciples of international human rights
law and foreign case

Law dealing with similar constitutions (s 39(1)), the African

Concept of ubuntu (see also 6.3.2 below) and our common-

Law heritage.

Froneman J explained the demands of the supreme

Constitution on statutory interpretation as follows in

Qozeleni v Minister of Law and Order (above) at 635 and

637:

The only material difference between that common-law approach and the

Present approach is the recognition that the previous constitutional system of

This country was the fundamental ‘mischief’ to be remedied by the application

Of the new Constitution. That Rubicon needs to be crossed not only

Intellectually, but also emotionally, before the interpretation and application of

The present Constitution is fully to come into its own right . . . For the

Constitution, and particularly chapter 3 thereof, however, to fulfil its purpose it

Needs to become, as far as possible, a living document, and its contents a

Way of thinking, for all citizens of this country. The establishment of a culture

Of constitutionality can hardly succeed if the Constitution is not applied daily in

Our courts, from the highest to the lowest.

Unfortunately, not all the courts in South Africa hold this

View, and some continue to follow a literalist approach to

Interpretation, without reference to the supreme Constitution

And its values. In Kalla v The Master 1995 (1) SA 261 (T)

269C-G the court held that the traditional rules of statutory

Page 105

Interpretation still formed part of the law of the land and that

They were not affected by the interim Constitution.

Consequently, the orthodox plain meaning rule was applied:

If the text is ambiguous, the traditional rules of

Interpretation of statutes may be applied to find the

‘intention of the legislature’. In other words, the traditional

Common-law rules of statutory interpretation trumped the

Supreme Constitution! Other courts still follow judgments

Such as this, which means that for many courts statutory

Interpretation is still a mechanical and formalistic exercise.

In Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) 32D-Ethe court still emphasised the
orthodox primary rule of

Interpretation is that the courts must give effect to the literal

Or grammatical meaning of the legislation, and that deviation

From this rule will be allowed only in exceptional

Circumstances. In similar vein the court in Mateis v Ngwathe

Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA) held that in

The light of the clear wording of the Act, the word ‘state’ in ss

1 and 3 of State Liability Act 20 of 1957 does not include a

Municipality. An interpretation otherwise would mean that

The court will not interpret the Act, but rather amend it. The

Court reasoned that it did not have such powers in cases

Where the constitutionality of the relevant statutory

Provision was not in dispute, or—in typical orthodox text-

Based tradition—where the meaning of the Act under

Consideration was clear.

5.3.4 Practical, inclusive method of

Interpretation

Interpretation of statutes is a process, but it is not a

Predetermined mechanical process consisting of mutually

Exclusive steps based on aspects such the clarity of the text

(eg the text-based contention that context becomes

Important only if and when the text seems unclear, and so

On). Examples of such incremental ‘only if’ mind-sets are still

Doing the rounds. Kellaway (1995: 187) suggests a so-called

‘triple-synthesis’ of literalism, intentionalism and

Purposivism, calling for a ‘careful appraisement of each of

These determining factors or guides.’ The problem with this

Approach is that the foundations of the three factors are so

Irreconcilable that the synthesis (amalgamation) will

Necessarily result in the usual text-based, formalistic, step-

By-step method of legal reasoning; only if the literal meaning

Of the text is not clear may the interpreter embark on a

Search for the legislature’s intention and the legislative

Case law example:

A text-based, hybrid approach was used by the

Western Cape High Court in Shackleton Credit

Management (Pty) Ltd v Scholtz (unreported case

12611/2010, Western Cape High Court). The court

Had to decide whether a close corporation was to be

Regarded as a company within the meaning of s

13(1)(g) of the Prescription Act 68 of 1969, and

Considered three interpretation approaches:

The golden rule (the plain meaning of the text

Must be followed unless it leads to an absurdity or a

Result not intended by the legislature);

The purposive approach (the words must be

Read in context); and

Reading-in in an attempt to make sense of the

Legislation (the creative role of the court).

There are two problems with this reasoning: first, it

Is also based on a mutually exclusive way of

Thinking: if method A does not work the court will

Try method B, and so on; and second, to argue that

A court will use ‘reading in’ (a form of corrective

Interpretation) as a method to make sense of the

Legislation is to put the cart before the horse. After

All (as will be discussed in Chapter 7 below), the

Legislative purpose must be clear before a court

May apply corrective interpretation; it is ludicrous

To suggest that a court may read words into the

Legislation in order to understand it (make sense of

It)!
Purpose.In Govender v Minister of Safety and Security 2001 (4) SA

273 (SCA) the court acknowledged that interpretation of

Legislation under the Constitution requires a new mind-set:

The court has to sail between the dangers of the Scylla of the
Old-style literalism and the Charybdis of judicial law-making.

It would seem that the court was trying to suggest that

Interpretation involves a journey between an orthodox text-

Based approach and free-floating judicial law-making, and

That the correct course is to be plotted somewhere between

The two. However, it is not entirely clear whether the court

Was in actual fact trying to propagate a particular approach

To interpretation—the phrase ‘between Scylla and Charybdis’

Does not refer to avoiding both possible dangers by trying to

Find some safe middle ground, but rather to having to choose

The lesser of two evils.

Page 107

Please note:

In Greek mythology, Scylla and Charybdis were two

Monsters who lurked on opposite sides of the Strait

Of Messina (between Italy and Sicily). Scylla was a

Six-headed monster and Charybdis was a dangerous

Whirlpool, and a ship sailing the strait was bound to

Be destroyed by one of the monsters. The legend of

The monsters gave rise to a number of phrases:

‘between Scylla and Charybdis’; ‘between the devil

And the deep blue sea’; and ‘between a rock and a

Hard place’—meaning a situation where one has to

Choose between two equally unattractive options.

Fortunately there is a practical, sensible and theoretically

Correct alternative. Du Plessis & Corder (1994: 73-74)originally suggested five practical
interrelated techniques for

Constitutional interpretation. However, Du Plessis (2002:

197-274) has applied this practical and inclusive method for

Statutory interpretation as well. These suggested techniques

Form the basis of a practical, inclusive method of

Interpretation which is used in the following chapter of this

Book. These components of a practical methodology are

Complementary and interrelated, and should be applied in

Conjunction with one another.

Eskridge (2001: 207) also describes a pragmatic approach

To interpretation which is based on a—

Grab bag of different techniques, including not just textual analysis, but also

Sophisticated appreciation of the goals underlying the legal text and the

Consequences of adopting different interpretations. Law involves a balance

Between form and substance, tradition and innovation, text and context.
However, the Du Plessis model is much more than that. As a

Result of the influence of the Constitution and the

Constitutional values, this suggested practical, inclusive

Method of interpretation also includes a strong normative

Component. This practical and inclusive method consists of

The following components:

Words and phrases: the language aspect

This aspect 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,

Punctuation,

Page 108

Sentences and other structural components of the text, and

On the rules of syntax (the rules dealing with the order of

Words in a sentence). However, this does not imply a return

To literalism and the orthodox text-based interpretation. It

Merely acknowledges the importance of the legislative text in

The complex process of interpretation.Structure and context: the systematic aspect

This method is concerned with the clarification of the

Meaning of a particular legislative provision in relation the

Legislative text as a whole. This is also known as a holistic

Approach, and refers to the principle that 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 all other

Contextual considerations (eg the social and political

Environments) in which the legislation operates.

Teleological interpretation: the value-based aspect

This aspect emphasises fundamental constitutional values

And value-coherent interpretation. The aim and purpose of

The legislation must be ascertained against the fundamental

Constitutional values; in other words, s 39(2) of the

Constitution. The fundamental values in the Constitution

Form the foundation of a normative, value-laden

Jurisprudence during which legislation and actions are

Evaluated against (and filtered through) those constitutional

Values.

Historical aspect

This method refers to the use of the historical context of the

Legislation. The historical context includes factors such as the

Circumstances which gave rise to the adoption of the

Legislation (mischief rule) and the legislative history (prior

Legislation and preceding discussions). Although it is an

Important aspect of interpretation, the historical perspective

Cannot be decisive on its own.

Comparative aspect

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.This inclusive method of interpretation

is not really new or

Radical. It merely brings together all the different aspects or

Page 109

Techniques necessary for interpretation: the enacted law-text

With all the linguistic complexities of grammar, syntax and

Spelling; the context of the text, including the relationship of

Different parts of the text with another, other texts outside

The legislation (such as the Constitution, other legislation as

Well as relevant surrounding circumstances); the purpose

(legislative scheme) of the legislation, as well the important

Substantive element of fundamental constitutional values;

The historical context of the legislation such as the

Discussions and deliberations preceding the passing of the

Legislation, the mischief rule, explanatory memoranda and

Policy documents; and the comparative dimension (foreign

Case law and international law). It is not just another

Template for a mechanical application of words and phrases

With passing reference to values and context. It is a total,

Integrated framework with which (and within which)

Interpretation of statutes as a process should take place; a

Practical, all-encompassing methodology to deal with the

Complexities and nuances of statutory interpretation.

Case law example:

These techniques are not merely academic

Exercises. Although the courts do not expressly

Apply this inclusive method of interpretation, some

(or most) of these components could be identified in

Certain judgments. For instance, with the exception

Of comparative interpretation, the other

Components may be identified in the following

Dictum from Minister v Land Affairs v Slamdien 1999(4) BCLR 413 (LCC) 422 para 17
(emphasis added):

The purposive approach as elucidated in the decisions of the

Constitutional Court and this Court requires that one must:

In general terms, 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 of the statute as a

Whole, the subject matter and broad objects of the statute and

The values which underlie it;

Page 110

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 . . .

ACTIVITY 1.1
(Doing or knowing statutory interpretation?)

Botha claims that there is a difference between the interpretation of statutes as a practical

Activity (the process of interpretation) and the interpretation of statutes as a field of law (the

Rules and principles of interpretation). He continues to argue that the process of statutory

Interpretation cannot simply be described in terms of the rules and principles of statutory

Interpretation. Does this make any sense? Write a paragraph in which you describe an

Activity from your ordinary daily life where the same distinction applies between the activity

Itself (the process) and the rules which regulate the activity.

FEEDBACK

There are many such activities. The game of soccer is an example. Can somebody really

Understand soccer and know how to play it by simply studying the official FIFA rule book?

Will this enable a person to pass, tackle or score a goal? Does that person not have to play

Or at least watch a soccer game being played to really understand what soccer is? Perhaps

Botha is trying to make the same point about statutory interpretation. Just as the game of
Soccer is not the same as the rules of soccer, the game of law (in this case the interpretation

Of statutes) is not the same as the rules of law (or the maxims and canons of statutory

Interpretation). Why is this of relevance to us?

Many students complain that the subject lacks the coherence and neat structure of other

Areas of law. One of the reasons why students experience this subject as (far too)

Indeterminate is precisely that the activity of interpretation cannot be described in terms of a

Neat and coherent set of rules. We believe that the same applies to all areas of law.

However, law’s essentially performative or game-like character (law is a matter of doing

Things with rules and principles, not just the rules and principles themselves) is particularly

Evident in this subject.

The point we are making is that this course might upset and unsettle many of your

Preconceptions and stereotypes about the nature of law and, even more importantly, about

The nature of legal studies. Studying law is not simply about memorising a set of rules (just
As learning to play soccer is not simply about memorising the rulebook). When you studythis
course, you are not merely memorising a set of rules and principles, you are learning

How to do something, namely, how to interpret or read legislation. You are learning an

Activity. What is more, as Botha explains, that activity cannot be performed in a logical and

Rule-like or deductive fashion.

For many students this is where the problem lies. Many students still operate under the

Impression that the solution of legal problems is a step-by-step, rule-bound or logical activity.

A rule is supplied or learned, a set of facts is supplied, and the rule is applied to the facts in

A logical fashion to establish the correct legal position or solution. This course and the

Textbook are both based on the assumption that the meaning of legislation cannot be

Established in the same way. The interpretation of law requires a holistic or lateral mode of

Reasoning (i.e. looking at the picture or situation or context as a whole), rather than a linear

Mode of reasoning (i.e. following logical steps one after the other). You will achieve success

In this course if you understand and appreciate that the interpretation of statutes is not like
Most other legal subjects, and should not be studied as just another legal subject.

It will help if you keep in mind the analogy of learning to play soccer. We trust that, with a

Little bit of practice, you will soon learn how to interpret legislation.

TEST YOURSELF

1) Identify the different sources of law, and the importance of legislation as a

Source of law.

2) List and briefly discuss five reasons why the interpretation of legislation is

Not a rule-bound activity.

3) Identify and discuss the main characteristics of the interpretation of statutes

As a legal subject before 1994.

4) Although statutes cannot be interpreted by following a set of logical steps in

Sequence, Botha does identify various phases in the interpretation process.

Identify these phases and briefly explain what happens in each phase.

5) Explain why learning to interpret legislation is a bit like learning to play

Soccer.
STUDY NOTES

STUDY UNIT 1

Identify the different sources of law, and the importance of legislation as a source of law

The law consists of all forms of law:

 Common law

 Statute law

 Indigeneous law

 Case law

List and briefly discuss the five reasons why the interpretation of legislation is not a rule-bound

Activity

The five reasons why the interpretation of legislation is not a rule-bound activity is as follows:

1. Legislation comprises all the different types of enacted legislation such as Acts of

Parliament, provincial legislation, municipal by-laws, proclamations and regulations.

An Act (upper case) refers to a parliamentary statute or the legislation of a provincial

Legislature (Wet);

An act (lower case) refers to conduct or action such as the act of a government official or

An organ of state.

2. The common law is composed of the rules of law which were not originally written
down,

But came to be accepted as the law of the land.

3. Common law needs to be distinguish from codifications, which are statutory compilations

Of all the legal principles relating to a particular branch of the law (eg criminal code).

4. Indigenous law refers to the traditional law of the indigenous black people of South
Africa.

5. Case law is the law as various courts in specific cases before them have decided on it.

Identify and discuss the main characteristics of the interpretation of statutes as a legal subject

Before 1994
Interpretation of statutes is the juridical understanding of legislation, deals with those rules and

Principles which are used to construct the correct meaning of legislative provisions to be applied

In practical situations. It is about making sense of the total relevant legislative scheme applicable

To the situation at hands

The interpretation of legislation is not a mechanical exercise during which predetermined

Formulae, well-known maxims and careful reading will reveal the meaning of the legislation

Provision.

Technical aspects (eg the structure of the legislation and language rules) must be applied in

Conjunction with substantive aspects (eg constitutional values and fundamental rights).

Traditionally interpretation of statutes in South Africa was saddled with unnecessary (and

Unacceptable) baggage; a confusing system of maxims and canons of interpretation, tentative

Principles, a golden rule, overriding principles, so-called primary, secondary and tertiary rules,

Manifest and clear meanings, rules of Roman-Dutch law influenced by English law,

Misconceptions about the structure and meaning of language, exceptions to the rule, as well as
Differences of opinion about how the so-called intention of the legislature should be ascertained.

Traditionally the South African rules of statutory interpretation were based on the sovereignty of

Parliament. In such a system, Parliament is not only the highest legislative body, capable of

Enacting any laws it wishes, but no court may test the substance of parliamentary Acts against

Standards such as fairness or equality. This was the system of government which operated in

South Africa before the interim Constitution took effect.

Although statutes cannot be interpreted by following a set of logical steps in sequence, Botha

Does identify various phases in the interpretation process. Identify these phases and briefly

Explain what happens in each phase.

Apart from the inherent difficulties of language and meaning the interpreter has to keep a number

Of other related issues in mind:

 The provision must be read, understood and applied within the framework of the supreme

Constitution and the Bill of Rights;

 What is the impact of other legislation?

 Is the legislation that must be interpreted still in force? If still in force, has it been amended

Since?

 If, for instance, a provision in an Act of Parliament is to be interpreted, it must be read with

The rest of the Act, including its definition section and possibly its schedules as well.

Regulations may have been issued in terms of the particular provision, which have to read

With the enabling legislation. Are those regulations valid?

 What is the context of the legislative text?

 Other external aids may be used to establish the meaning of the legislation;

 Sometimes the interpreter will be confronted by the results of poor drafting, conflicting

Provisions or a lack of resources to research the current law.

Explain why learning to interpret legislation is a bit like learning to play soccer.

Many students still operate under the impression that the solution of legal problems is a step-by-

Step, rule-bound or logical activity. A rule is supplied or learned, a set of facts is supplied, and
The rule is applied to the facts in a logical fashion to establish the correct legal position or
solution.

This course is bases on the assumption that the meaning of legislation cannot be established in

The same way. The interpretation of law requires a holistic or lateral mode of reasoning (i.e
looking at the picture or the situation or context as a whole), rather than a linear mode of
reasoning (i.e.

Following logical steps one after the other).

The interpretation of statutes is not like most other subjects and should not be studied as just

Another legal subject.

INTERPRETATION OF STATUTES

SECTION A – GENERAL INTRODUCTION

CHAPTER 1 – GENERAL INTRODUCTION

Interpretation of statutes is about making sense of the total relevant legislative scheme applicable
to the

Situation at hand

Definition of interpretation of statutes by Botha:

The body of rules & principles used to construct the correct meaning of legislative provisions to
be
Applied in practical situations

Statutes cannot be interpreted in a mechanical / rule-like fashion –

 Many rules of interpretation (aka: maxims / canons / presumptions of interpretation) overlap &

Cannot be neatly compartmentalised

 “Legalese” – language used in legislation is often difficult & obscure

 Circumstances & contexts in which legislation must be applied differ

 Courts have not developed clear & predictable pattern of application for certain rules

 All interpreters are influenced by their own history & background

 Interpretation involves value judgments

Interpreter has to determine what the legislation has to accomplish in the legal order – case law
& older

Sources refer to this as the “intention of the legislature” – other sources refer to it as “purpose of
the

Legislation” / “legislative scheme” – However, it’s difficult to picture such a collective intention
exercised by
All members of a legislative body because:

 Legislature is composed of a number of persons – all of whom take part in the legislative
process;

 As part of the democratic legislative process some members of the legislature may oppose the

Legislation for various reasons, with the result that the adopted legislation ultimately reflects the

“intention” of only the majority of the legislature;

 Some members will support legislations for the sake of party unity – though they may
personally be

Opposed to a Bill = “intention” of legislature is subject to what the individual members of

legislative

Body, under pressure from their party assembly, “had to” intend

 Parliamentarians are elected politicians – they do not necessarily understand the complex &

Technical legislation which they adopt;

 A Bill introduced in the legislature is not drafted by the public representatives, but by
legislative

Drafters & law advisers acting on advice of officials from various state departments; and
 Some members of legislative body may even be absent when voting on draft legislation takes
place

The correct interpretation of legislation does not depend on which term is used – but more
importantly,

How the purpose (or intention / legislative scheme / aim of legislation) is ascertained &
construed

Botha refers to “correct” answers – however if the rules & principles of statutory interpretation
are as

Complex & results of interpretation as unpredictable & from Botha’s own account of the non-
mechanical

Nature of the interpretative process – UNISA has a better definition =

The body of rules & principles that are used to construct & justify the meaning of legislative

Provisions when they are applied in practical situationsTHE NEW CONSTITUTIONAL

ORDER

Before 1994 Interim Const – interpretation of statutes was based on sovereignty of Parliament –

 Parliament as highest legislative body AND was capable of enacting any laws it wished

 No court could test substance of parliamentary Acts against standards like fairness / equality

Characteristics of statutory interpretation before 1994 interim constitution:

 1. There was a confusing system of maxims & canons (standards / rules) of interpretation;

2. It was saddled with the so-called primary, secondary & tertiary rules;

3. There were misconceptions about structure & meaning of language; and

4. There were differences of opinion as to how the so-called intention of the legislature
should be

Ascertained

After introduction of 1994 Interim Const –

 Principle of parliamentary sovereignty was replaced by constitutional supremacy

 Interpretation clause stated that the spirit & purport of fundamental rights had to be taken into

Account during interpretation of statutes – courts can no longer ignore value judgments

 Rules of statutory interpretation were influenced by new constitutional order

 Critical questions asked by academics were no longer theoretical reflections

 Correct method of statutory & constitutional interpretation formed the centre of debate about
the
Protection of fundamental human rights

After introduction of 1997 Const –

Principles of interim const which transformed statutory interpretation were retained

Interpretation of statutes was transformed by the following 6 provisions:

1. S1 – the foundational provision;

2. S2 – supremacy clause;

3. S7 – obligation clause

4. S8 – application clause

5. S36 – limitation clause

6. S39 – interpretation clause

PROCESS OF INTERPRETATION: A TEACHING TOOL

Dual nature of statutory interpretation = a body of law AND a practical activity

“Statutory interpretation” means distinguishing btw:

1. Process / activity of interpreting statutes on the one hand; and

2. The law (body of rules & principles) that regulates that process on the other

The legal rules & principles cannot, by themselves, say anything about the activity / process of

Interpretation

More is involved in the process than mere knowledge of the rule book

(i.e. same distinction applies to activity of cooking a meal – the process of cooking can & must
be

Distinguished from the study of recipe books (i.e rule books on cooking) – a good cook not only
knows many

Good recipes – she also knows how to cook)Botha divides the process / activity of interpreting
legislation into 3 phases:

1. Initial phase:

Text of legislation is read to discover its initial meaning – bearing in mind the CL presumptions
&a

Balance btw the text & the context of the particular legislation
Foll basic principles are used as a point of departure:

 Supreme Const in general and the BOR in particular are the cornerstones of legal order

 Most NB principle of statutory interpretation = to ascertain the purpose of the legislation &

Apply it in the light of the BOR

2. Research phase:

Purpose of legislation is determined by studying all the factors & considerations that may have a

Bearing on the particular legislation:

 The legislative text;

 Interpretation Act;

 CL presumptions;

 Aids outside the legislative text; and

 Other contextual factors

3. Concretisation phase:
Legislative text, purpose of legislation & facts of case are harmonised to bring the process to a
just,

Purposive & meaningful end within the framework of the purpose of the legislation

Spirit, purport & aim of the fundamental rights in Const must be promoted

CHAPTER 2

What is legislation
What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Explain what is regarded as legislation in South African law

(2) Classify different pieces and types of legislation

(3) Explain the basic structure or parts of legislation

(4) Discuss the relationship between legislative interpretation and common law

What are the basic questions to be answered?

The rules and principles of statutory interpretation apply only to legislation. Our
First task is therefore to establish what is regarded as “legislation” in South African

Law. Consider the following example. Section 89 of the Local Government:

Municipal Electoral Act 27 of 2000 reads as follows:

Regulations

(1) The [Electoral] Commission must make regulations regarding any mat-

Ter that must be prescribed in terms of this Act.

(2) The Commission may make regulations regarding any matter

(a) That may be prescribed under this Act; or

(b) That it considers necessary or expedient in order to achieve the

Objects of this Act.

The Commission has issued regulations in terms of this section. Are the

Regulations under the Act also regarded as “legislation”? Do the same rules and

Principles of statutory interpretation apply to both the Act and the regulations? If
The regulations are regarded as legislation, do they fall into the same class or

Category as the Municipal Electoral Act? These are some of the questions that will

Be answered in this chapter.

WHAT IS LEGISLATION?

As a student of statutory interpretation, the first thing that you need to familiarise

Yourself with is “legislation”. Legislation is one of three formal sources of law in

South Africa. The other two are judicial precedent and custom. Legislation or

Enacted law texts, as Botha explains, are written law enacted by a body (institution)

Or person (functionary) authorised to do so by the Constitution or other legislation.

This definition excludes common law, as does the definition of “law” in the

Interpretation Act 33 of 1957. Remember: the importance of distinguishing

Between legislation and other types of law lies in the fact that rules and principles

Of interpretation apply only to the interpretation of legislation. You need to study

The definitions of the Interpretation Act very carefully.

It is important to distinguish legislation from other sources of
Law, because the rules and principles of statutory

Interpretation apply only to legislation. Legislation (also

Called ‘statute law’) is written law enacted by a body or

Person authorised to do so by the Constitution or other

Legislation. Du Plessis (2002: 1) refers to legislation as

‘enacted law-texts’.

What does ‘enacted law-text’ mean?

‘Enacted’ means it was adopted/issued/promulgated in

Terms of the prescribed legal requirements (for instance, the

Constitution and the Interpretation Act 33 of 1957 (‘the

Interpretation Act’)).

‘Law’ means it has the force of law.

‘Text’ means it is written law.

The term ‘legislation’ (statute law or enacted law-texts)

Comprises a number of sometimes confusing names and

Concepts, for instance, Acts, statutes, ordinances,

Regulations, proclamations, rules, notices and by-laws. Apart

From the fact that the various types of legislation are

Categorised in terms of both a chronological timeline and a

Hierarchical power structure (discussed in 2.2 below), some

Of these names have different meanings, depending on the

Context in which they are used.In order to determine the legal meaning of ‘legislation’, let us

Start with the definitions in the Interpretation Act. Section 1

Of the Interpretation Act provides:

1 Application of 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 orders 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.

‘Law’ in this context does not include the common law. In

Other words, the rules of statutory interpretation apply only

To legislation. But how does legislation define itself? Section

2 of the Interpretation Act defines ‘law’ as follows:

3
‘law’ means any law, proclamation, ordinance, Act of Parliament or other

Enactment having the force of the law.

According to the Interpretation Act (ss 1 and 2 read

Together) legislation consists of:

Any law, proclamation, ordinance, Act of Parliament, all

By-laws, rules, regulations or orders; and

Any other enactment having the force of the law.

Confusing, it gets worse! Section 239 of the Constitution also

Defines legislation:

In the Constitution, unless the context indicates otherwise—

‘national legislation’ includes—

Subordinate legislation made in terms of an Act of Parliament; and

Legislation that was in force when the Constitution took effect and

That is administered by the national government;

Page 17

...

‘provincial legislation’ includes—

Subordinate legislation made in terms of a provincial Act; and

Legislation that was in force when the Constitution took effect and

That is administered by a provincial government.

Furthermore, ss 101(3) and 140(3) of the Constitution refer

to subordinate legislation as proclamations, regulations and

other instruments of subordinate legislation, item 1 of

Schedule 6 of the Constitution distinguishes between old

order legislation and legislation since 1994, and ss 44, 104

and 156 of the Constitution mention assigned legislation.

Finally, s 156(2) of the Constitution empowers local

governments (municipalities) to make by-laws as mentioned

in the Interpretation Act.

According to the Constitution the legislative menu consists

of the following:

national and provincial legislation;

proclamations, regulations and other instruments of

subordinate legislation;

assigned legislation;

old order legislation (defined in item 1 of Schedule 6 of

the Constitution as any legislation enacted before the interim

Constitution took effect on 27 April 1994);

legislation in the new constitutional order since 1994;

and

municipal by-laws.

All of these will be explained in the sections to follow

CATEGORIES OF LEGISLATION

In paragraph 2.2, Botha explains how legislation is classified in South African law.

Although legislation may be classified according to various criteria, for the

Purposes of this course, only three categories are important, namely:

 (i) History (chronological categories)

(ii) hierarchy

(iii) status

Firstly, South African legislation can be divided according to three historical

Categories, namely: legislation before 1806, old order legislation and legislation in

The new constitutional order since 1994. Read paragraph 2.2.1.

More importantly, legislation can also be classified with reference to its place in the

Hierarchy of legislation and, thirdly, with reference to its status. Study paragraph

2.2.2 very carefully.

2.2.3
As far as the hierarchical classification is concerned, the Constitution is at the top

Of the hierarchy. Any legislation that is in conflict with the Constitution is invalid.

Section 2 of the Constitution says so in so many words. The Constitution is

Followed by original legislation. This comprises parliamentary, provincial and

Municipal legislation. Subordinate legislation (e. g. proclamations and regulations)

Ranks at the bottom of the legislative hierarchy.

The classification of legislation according to status yields a distinction between

Original and subordinate legislation. Original legislation is made by elected

Legislative bodies that derive their authority to enact legislation either directly from

The Constitution or from an Act of Parliament. Subordinate legislation, on the

Other hand, is made by institutions (bodies) or functionaries (persons) who/which

Derive their power to enact such legislation from original legislation. In other words,

Subordinate legislation is authorised by, and is enacted in terms of, original

Legislation. For example, section 89 of the Electoral Act (an Act made by

Parliament) authorises the Electoral Commission to make regulations to further

And develop the Act. For more examples of original and subordinate legislation, see

Botha.
Chronological categories
This classification explains all forms of existing legislation

According to their historical origins. This part is fairly simple:

It is a little bit of history, and the legislation is mere

Categorised in terms of a chronological time-line.

(a) Legislation before 1806

Some statutes of the Staten-Generaal of the Netherlands and

Placaaten (statutes) of Holland may still be in force. Although

Technically classed as legislation, these became part of South

African common law with no formal procedures required for

Their demise, and they may be abrogated by disuse. This

Means that neither the various definitions of legislation

(statute law) nor the rules of statutory interpretation will

Apply to them.

(b) Old order legislation

Old order legislation is defined in item 2 of Schedule 6 of the

1996 Constitution as being any legislation in force before the

Interim Constitution took effect (just after midnight) on 27

April 1994. However, to understand the potential

Complexities of existing old order legislation, a few important

Historical highlights of South Africa’s constitutional

Development since 1910 are necessary.

Back to the categories of legislation—old order legislation is

Divided into the following two historical eras:

Pre-Union legislation (1806-1910)

This category refers to the legislation adopted between the

British annexation of the Cape in 1806 and the creation of

The Union of South Africa in 1910. It consists of legislation of

The British colonies and the Boer Republics. Most of these

Had been either repealed or incorporated into legislation of

The Union (1910-1961), and the Republic (since 1961) with

Legislation such as the Pre-Union Statute Laws Revision Act

24 of 1979. However, according to the Department of Justice

And Constitutional Development, on 30 March 2007 some

Examples of pre-Union legislation still in force (and probably in conflict

Page 20
with the Constitution and other more recent legislation)
include the Lord’s Day Observance Act 19 of 1895 (Cape
Province), the Sunday Act 28 of 1896 (Transvaal) and the
Police Offences Ordinance 21 of 1902 (Free State).
Legislation between Union and the democratic era (1910-
1994)
In view of the constitutional changes since 1994, this
legislation is known as ‘old order legislation’ and would
include most of the existing South African legislation: Acts of
Parliament, legislation of the so-called ‘independent
homelands’ or TBVC states (Transkei, Bophuthatswana,
Venda and Ciskei), legislation of the former self-governing
territories or homelands (Kangwane, Gazankulu, Lebowa,
KwaZulu, Kwandebele and QwaQwa), provincial ordinances
enacted by the provincial councils of the four ‘white-
controlled’ provinces (Transvaal, Cape, Orange Free State
and Natal from 1910 to 1986), proclamations issued by the
administrators of the four ‘white-controlled’ provinces after
the provincial councils were abolished (1986-1994), by-laws
enacted by local authorities (town councils and
municipalities), as well as other existing delegated
(subordinate) legislation.
(c) Legislation in the new constitutional order since
1994
This category refers to all legislation enacted after the start
of constitutional democracy in 1994. It includes the interim
Constitution (since repealed); the 1996 Constitution;
national legislation (Acts of Parliament and delegated
legislation issued in terms thereof); provincial legislation
(Acts of the nine provincial legislatures and delegated legislation issued in terms thereof); other
regulations and
proclamations; and legislation by the new local authorities
created since 1994.
2.2.2 Hierarchical categories
The historical distinction was fairly easy. However, the
hierarchical categories deal with the status of legislation, and
this is where things become difficult. Before 1994 the
Constitution was not supreme, and the classification of
legislation was simple and straightforward: original
legislation (such as Acts of Parliament) and subordinate
legislation (such as regulations and proclamations).
The post-1994 era is more complicated. Now we have a
supreme Constitution, old order legislation and new post-
1994
Page 21
legislation, and three spheres of government (national,
provincial and local). The Constitution is supreme, and all
legislation is now subject to it. It may now be argued that
legislation issued by the administration (also known as
subordinate or secondary legislation) should be referred to as
delegated legislation to avoid confusion. However, the
Constitution itself expressly refers to subordinate legislation
(ss 101, 140 and 239 of the Constitution).
(a) The Constitution
The Constitution is the supreme law of the Republic, any law
or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled (s 2). The courts may now test
all legislation (including new and old order Acts of
Parliament) and government action in the light of the
Constitution.
Initially the Constitution was known as the Republic of South Africa Constitution Act 108 of
1996. However, the
Constitution cannot merely be Act 108 of 1996. It is the
highest law in the land, and incorporates the rights,
aspirations and values of its people. It is degrading to
number such an exalted document (the birth certificate of a
new constitutional order) as merely the next statute on the
legislative list. Furthermore, the Constitution was not
adopted by Parliament but drafted by the Constitutional
Assembly and certified by the Constitutional Court. This
mistake has been corrected by the Citation of Constitutional
Laws Act 5 of 2005. From the date of commencement of the
Citation of Constitutional Laws Act, no Act number is
associated with the Constitution. Any reference to the
Constitution of the Republic of South Africa Act 108 of 1996
in any law in force immediately prior to the commencement
of this Act, must be construed as a reference to the
Constitution of the Republic of South Africa, 1996.
Some people refer to the Constitution of 1996 as the final
Constitution or FC. Since nothing is final except death and
taxes, and although the Constitution refers to itself as the
new Constitution (item 1 of Schedule 6), this book will refer
to the Constitution of the Republic of South Africa, 1996 as
‘the Constitution’.
(b) Original legislation
Original (primary) legislation derives from the complete and
comprehensive legislative capacity of an authorised
legislative
Page 22
body. The hierarchical status of original legislation in South
Africa is based on two interrelated principles:
Firstly, it is enacted by democratically elected,
deliberative, law-making bodies. In Middelburg Municipality v Gertzen 1914 AD 544 the
Appellate Division stressed that
the status of legislation is to a large extent determined by
the deliberation (discussions) during the law-making process.
Please note that in certain cases the Constitution also
requires the additional measure of public participation as
part of the law-making process of original legislation.
Secondly, the original law-making powers of the elected
deliberative legislatures are always founded in the
Constitution, but are derived in two different ways:
directly from the Constitution—Parliament (ss 43(a)
and 44), provincial legislatures (ss 43(b) and 104(1)) and
municipalities (ss 43(c) and 156(1)(a)); and
indirectly from the Constitution (assigned by another
Act of Parliament or a provincial legislature)—Provincial
legislatures (additional legislative powers assigned by Acts of
Parliament (ss 44(1)(a)(iii) and 104(1)(b)(iii))); and
municipalities (additional legislative powers assigned by Acts
of Parliament (ss 44(1)(a)(iii) and 156(1)(b)) and additional
legislative powers assigned by provincial Acts (ss 104(1)(c)
and 156(1)(b)).
Acts of Parliament
These include all Acts of Parliament since 1910. Between
1910 and 1983 Parliament consisted of the House of
Assembly and Senate; between 1983 and 1994 it comprised
the House of Assembly, the House of Representatives, the
House of Delegates and the President’s Council; and since
1994 Parliament has consisted of the National Assembly and
the National Council of Provinces.
The legislative authority of the current Parliament is
derived directly from the Constitution. Parliament is the
highest legislative body in South Africa and it may, subject to
the Constitution, pass legislation on any matter. This means
the courts may review (test) Acts of Parliament against the
Constitution. Although the Constitution is the supreme law, some Acts
of Parliament have a higher status than other original
legislation. The Promotion of Access to Information Act, the
Promotion of
Page 23
Administrative Justice Act and the Promotion of Equality and
Prevention of Unfair Discrimination Act (the so-called
‘constitutional Acts’) were enacted to give effect to specific
and express legislative measures required by the
Constitution (ss 32, 33(1) and 9 read with item 23(1) of
Schedule 6 of the Constitution, respectively). A good
example of this specific superior status is found in s 5 of the
Promotion of Access to Information Act:
Application of other legislation prohibiting or restricting disclosure
This Act applies to the exclusion of any provision of other legislation that—
prohibits or restricts the disclosure of a record of a public body or
private body; and
is materially inconsistent with an object, or a specific provision, of
this Act.
Other examples of original legislation also contain provisions
stating that it will prevail over any other law in a particular
field of law (for example s 70 of the Higher Education Act
101 of 1997):
Application of Act when in conflict with other laws
This Act prevails over any other law dealing with higher education other
than the Constitution.
Obviously provisions such as these have to be read in
conjunction with the supreme Constitution as well as with
the constitutional Acts (for instance, the Promotion of
Administrative Justice Act).
New provincial Acts (1994-)
This category comprises the legislation enacted by the nine
new provincial legislatures. Their legislative power is also derived directly from the Constitution
or assigned to them by
Acts of Parliament. The courts also have the power to review
provincial Acts in the light of the Bill of Rights in the
Constitution.
The Constitution confers original legislative powers directly
on provincial legislatures to pass legislation for their
provinces on matters referred to in Schedules 4 and 5 to the
Constitution and, in addition, provides for additional
legislative powers to be assigned to them by Acts of
Parliament on matters outside the Schedules. Provincial ordinances (1961-1986)
The Provincial Government Act 32 of 1961 empowered the
four provincial councils of the time (Transvaal, Orange Free
State, Natal and Cape Province) to enact provincial
ordinances on matters concerning their respective provinces.
These provincial councils were abolished on 1 July 1986 by
the Provincial Government Act 69 of 1986. Since these
ordinances were enacted by an elected body, could alter the
common law and could even have retroactive force, they represent a category of original
legislation. A particular
ordinance applies only in the ‘old’ geographical area of the
former province.
Legislation of the former homelands
The homelands (self-governing territories) enjoyed
concurrent original legislative powers with the central
government. In terms of the repealed Self-governing
Territories Constitution Act 21 of 1971, these territories were
granted complete legislative capacity with regard to certain
specific matters (eg health and welfare, education and
agriculture). In these matters the particular legislative
assemblies could enact any legislation and even repeal or
amend parliamentary legislation. Prescribed matters such as
defence and foreign affairs fell outside their legislative
competence. They were also not empowered to repeal the
Self-Governing Territories Constitution Act or the
proclamations in terms of the Act which granted self-
governing status to a particular homeland.
Legislation of the former TBVC states
Although the legislation of former so-called ‘independent’
homelands did not form part of South African legislation, it
remains valid as part of South African law in the area where
it previously applied, because these territories have been
Page 25
reincorporated into the Republic. It will have the same force
of law as provincial Acts, provincial ordinances and
legislation of the former self-governing territories in their
areas of operation. Although the legislation of the TBVC
states is original legislation, the High Court has the
jurisdiction to test its constitutionality against the provisions
of the supreme Constitution like that of any Act of Parliament
(Zantsi v Council of State, Ciskei 1995 (4) SA 615 (CC)). New municipal legislation
In terms of the Constitution, municipal councils may enact
by-laws in respect of local government matters for their
areas. Because municipal councils are representative and
deliberative legislative bodies, new municipal by-laws (after
1994) constitute original legislation (Fedsure Life Assurance
Ltd v Greater Johannesburg Transitional Metropolitan Council
1999 (1) SA 374 (CC)).
Municipal councils now have original legislative powers,
and may pass by-laws for their areas on matters referred to
in Schedules 4B and 5B of the Constitution without the need
for enabling parliamentary or provincial Acts. Additional
legislative powers may also be assigned to them by either
national or provincial legislation. Municipalities cannot
delegate the making of a by-law. As a result, there is no
‘subordinate legislation’ category for the local sphere.
(c) Subordinate (delegated or secondary) legislation
In principle, subordinate legislation is a violation of the
separation of powers principle because unelected (appointed)
persons, sometimes members of the executive, obtain law-
making powers. However, the reason for subordinate
legislation is not as sinister as it seems.
Acts of Parliament and other forms of original legislation
are sometimes drafted in broad terms (skeleton form);
subordinate (delegated) legislation then ‘adds the flesh’
(Hahlo & Kahn (1973: 163)). Because the respective elected
deliberative legislative bodies are not continuously in session
so as to deal with every possible detail in a changing society,
they may find it necessary to delegate some of their powers
to other persons (eg the President or a Minister) or bodies
(eg the Rules Board or the Council of a university). These
are then vested with delegated legislative powers under
enabling legislation. Since Parliament can amend an Act of Parliament only by means of
Page 26
another (amending) Act of Parliament (a long, expensive and
cumbersome process), something that must be changed
frequently and quickly needs to be dealt with in terms of
subordinate legislation. Such subordinate (delegated) legislative enactments are
known as legislative administrative acts whose validity may
be reviewed by the courts. In each case the scope of the
subordinate legislation will depend on the provisions of the
particular enabling (authorising) legislation.
Subordinate legislation in terms of national legislation
The 1996 Constitution and an Act of Parliament may confer
delegated legislative powers on certain persons or bodies, for
example—
In terms of s 89 of the Defence Act 42 of 2002, the
President is authorised, subject to s 203 of the Constitution,
to declare a state of national defence by proclamation.
A Minister is authorised to promulgate certain regulations in accordance with the prescription of
the
particular enabling Act (eg s 75 of the National Road Traffic
Act 93 of 1996, which empowers the Minister of Transport to
issue regulations dealing with—amongst others—the use of
any vehicle on public roads; or s 69 of the Higher Education
Act 101 of 1997, which empowers the Minister of Higher
Education and Training to issue regulations on a number of
higher education-related matters).
A statutory body or a person may be empowered to
make regulations (eg s 32 (read with s 33) of the Higher
Education Act 101 of 1997, which authorises the Council of a
university, subject to the approval of the Minister of Higher
Education and Training, to issue an institutional statute for
the university dealing with the general management of such
a university; or s 6 of the Rules Board for Courts of Law Act
107 of 1985, which empowers the Rules Board for Courts of
Law—subject to the approval of the Minister of Justice—to
make, amend or repeal the rules for the Supreme Court of
Appeal, the High Courts and the lower courts).
Page 28
New and existing provincial proclamations and regulations
Before the provincial councils were abolished in 1986,
certain ordinances enabled members of the various provincial
executive committees to issue regulations and proclamations.
The Provincial Government Act 69 of 1986 abolished
provincial councils and therefore any elected legislative
bodies for the provinces and its accompanying original
legislative competency. The legislative authority for the
provinces was transferred to the Administrator of each
province. The Administrator enacted or amended or repealed
provincial legislation by proclamation and could issue
regulations under existing or new parliamentary Acts,
provincial ordinances or new proclamations. As a result, old
order provincial legislation consists of both original and delegated legislation, which may have to
be read together.
The new provincial legislatures will, like their
parliamentary counterparts, be able to empower other
functionaries, such as the Premier or members of a provincial
Cabinet, to ‘add the flesh’ to provincial Acts through
proclamations or regulations. These will also have to satisfy
the requirements and limits set by the enabling Act.
Finally, a few general aspects of subordinate (delegated)
legislation must be borne in mind:
Subordinate legislation may not be in conflict with
original legislation. The persons or bodies authorised to issue
delegated legislation may do so only within the framework of
the authority specifically bestowed on them by the enabling
legislation. If not, they have acted ultra vires (outside the
scope of their powers) and the subordinate legislation in
question could be invalidated by a court of law.
Delegated (subordinate) legislation owes both its
existence and its authority to its enabling original legislation.
If the enabling Act is declared unconstitutional by a court,
the subordinate legislation issued in terms of such an
invalidated Act will also cease to exist unless the court orders
otherwise (Moseneke v Master of the High Court 2001 (2) SA
18 (CC)). If the enabling Act is repealed, all the subordinate
legislation issued in terms of the repealed Act will also cease
to exist (Hatch v Koopoomal 1936 AD 197; Pharmaceutical
Manufacturers Association of SA; In re: Ex parte Application
of the President of the Republic of South Africa 2000 (2) SA
674 (CC)), unless the repealing Act
Page 29
expressly provides otherwise. For example, item 24(3)
of Schedule 6 of the Constitution expressly provides
that although the interim Constitution has been
repealed, the regulations made in terms of s 237(3) of the interim Constitution remain in force.
Parliament cannot confer a power on a delegated
legislative body to amend or repeal an Act of Parliament
(Executive Council Western Cape Legislature v President of
the RSA 1995 (4) SA 877 (CC)).
Although subordinate legislation must be read and
interpreted together with its enabling Act, the enabling Act
may not be interpreted on the basis of the subordinate
legislation made under it (Freedom of Expression Institute v
Chair, Complaints and Compliance Committee (unreported
case 2009/51933) [2011] ZAGPJHC 2 (24 January 2011)).
2.2.3 Old wine in new bags: Applying old order
legislation in the new constitutional order
As was explained earlier, the Constitution defines old order
legislation as any legislation enacted before the interim
Constitution took effect. In terms of item 2 of Schedule 6 of
the Constitution, all legislation that was in force when the
Constitution took effect continues to be in force, subject to
any amendment or repeal, and consistency with the
Constitution. Old order legislation that remains in force does
not have wider application that it had before, and continues
to be administered by the authorities that administered it
when the Constitution took effect, unless the Constitution
stipulates otherwise. Item 2 of Schedule 6 ensures an
orderly transition, because this process was not yet complete
when the 1996 Constitution was enacted.
This means that the vast majority of legislative
enactments (including those of the previous four former
provinces, the large number of racially segregated local
government structures, and even certain legislation of the
six self-governing territories and four ‘independent’
homelands) remain on the statute book.
However, these were replaced by nine provinces and (at the time of writing) 283 municipalities.
Each of the new
provinces has its own provincial legislature and executive,
generating new original and delegated legislation. Often the
new provincial boundaries overlap with old ones, and
sometimes neighbouring local authorities have been
amalgamated. To cloud the issue even further, it must also be
borne in mind that during the
Page 30
apartheid era local government was structured on a racial
basis. Black local authorities were controlled by general
affairs legislation, while the white, Indian and coloured local
authorities derived their powers from own affairs legislation.
The new authorities at national, provincial and local level
have to contend with both existing and new legislation,
applicable to old and new areas of jurisdiction. Some of the
old order legislation has been repealed fully and some
merely in part, while the greater part of existing legislation
remains in force to enable the new structures and authorities
to govern, and services to continue. New Acts of Parliament
have to be read together with other existing original
legislation as well as a vast amount of subordinate legislation
to keep the system going (for example, officials and
administrative bodies derive their powers and authority from
existing enabling legislation). Also note that in Ynuico Ltd v
Minister of Trade and Industry 1996 (3) SA 989 (CC) the
Constitutional Court held that the reference to ‘laws’ in s 229
of the interim Constitution (which also provided for old order
legislation to remain in force until it was amended, repealed
or invalidated) is not limited to primary legislation, but
includes subordinate legislation.
Existing old order legislation cannot simply disappear.
Legislation has to be repealed or declared unconstitutional by
a competent authority. This means that a new province, for
instance, North West, will still administer existing Transvaal ordinances in those North West
areas which were part of the
Transvaal before 1994. So: try to picture the territory of
North West (mostly old Transvaal, bits of Bophuthatswana,
and a tiny bit of the old Cape Province). The challenge is to
determine in which areas the Transvaal ordinances will still
apply by using old legislation to find out what used to be the
former Transvaal territory (maps, magisterial districts, and so
on). However, remember that the North West legislature is
authorised to repeal existing old order legislation at
provincial level (provincial ordinances and homeland
legislation) for North West only. Those ordinances and
homeland legislation will remain in force in other provinces
until their respective legislatures repeal them. 2.2.4 ‘Law of general application’
In terms of s 36 of the Constitution (the general limitation
clause), a fundamental right in the Bill of Rights may be
limited in terms of the law of general application. What is
‘law of general application’? Is it all law, or only statute law
(legislation)? For the purpose of this book it is sufficient to note that the term ‘law of general
application’ in s 36 of the
Constitution includes all forms of legislation, as well as
common law and indigenous law (Du Plessis v De Klerk 1996
(3) SA 850 (CC)).

ACTIVITY 2.1

(Original or subordinate legislation)

Look at section 89 of the Municipal Electoral Act 27 of 2000 again. Can you now answer the
Questions that were posed above: do the same rules and principles of interpretation apply to

Both the Act and the regulations?

FEEDBACK

Yes. Section 1 of the Interpretation Act states explicitly that the rules of interpretation that

Are prescribed by the Act apply to the “interpretation of every law” and to “regulations” that

Were issued in terms of that law. The Municipal Electoral Act is also known as the enabling

Act or original legislation, and the regulations as subordinate legislation. In spite of this

Hierarchical classification, the same rules and principles of interpretation apply to both.

2.3 WHAT IS NOT LEGISLATION?

2.4
In the next chapter, which deals with the commencement of legislation, you are

Told that legislation comes into operation after it has been published in the Gazette.

However, not everything published in the Gazette constitutes legislation. In

Paragraph 2.3 Botha lists all the documents which, although they may lead to

Legislation, do not constitute legislation themselves. You will notice that common
Law rules and unwritten customary laws are not legislation although they are formal

Sources of South African law.

2.3 What is not legislation?

By now you should have a pretty good idea of what

Legislation is. Legislation is written law enacted by a body or

Person with the authority to do so. As will be explained in

Chapter 3, legislation must be published in an official

Gazette before in order to take effect. However, not

Everything published in an official Gazette is legislation!

Before any document can be classified as legislation, it needs

To comply with all the constitutional and other legal

Requirements dealing with authority, adoption and

Publication.
Using the term ‘enacted law-text’ it is also possible to

Determine which texts (including other law-texts) are not

Classified as legislation:

Common-law rules and rules of indigenous law also

Constitute law (and can in most instances be found in texts).

However, these rules are not enacted as legislation by an

Authorised lawmaker.

Page 34

Case law is also binding law (dealing with

Interpretation, development and application of legal rules)

And is found in texts, but since this judge-made law is not

Issued by lawmakers it does not constitute legislation.

Policy documents such as Green and White Papers,

Interpretation notes, explanatory memoranda and practice

Notes also constitute law texts (practical applications of legal

Rules), but as they were not enacted by lawmakers, they do

Not constitute legislation. A wide range of policy documents

Issued by government departments in the process of

Formulating public policy are published to elicit public

Comment as part of a process of public participation. In Akani

Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd

2001 (4) SA 501 (SCA) the court explained that laws,

Regulations and rules are legislative instruments, but policy

Determinations are not. Policy determinations cannot

Override, amend or be in conflict with legislation, otherwise

The separation between legislature and executive will

Disappear.

Paradoxically, some of these legal texts (explanatory

Memoranda, commission reports and practice notes)—

Although not legislation—may be used during the

Interpretation of legislation (as will be explained in Chapter

6), or may even be part of legislation in the future (Green

And White Papers and draft Bills).

Internal departmental memos and policy guidelines on

How government departments apply legislation are circulated

On a regular basis. These and other official documents are

Not legislation. Legislation (especially subordinate legislation)

Should be distinguished from what Baxter (1984: 200) refers

To as ‘administrative quasi-legislation’. This consists of

Departmental memos and directives, which, although

Enforceable in some instances, do not constitute subordinate

Legislation. Legal notices and even advertisements are

Regularly published in the Gazette, but these texts are not

Even close to being legislation.

STRUCTURE OF LEGISLATION

It is also important that you know how legislation is structured (paragraph 2.4 of

The textbook). The extent to which these different structural components may be

Used to construe legislation is discussed in detail in chapter 6 of the prescribed

Textbook.

2.5 Legislative structure and ‘codes’

2.6
To start the interpretation process, the legislation must be

Read and analysed. 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.Although the language and structure of the legislative text

Are not the only aspects that are considered during statutory

Interpretation, students must understand the structure of

Legislation and how these structural components interact.

How and when the different components, as well as the

Structural interrelatedness of legislation, may be used during

The interpretation process will be explained in Chapter 6.

Unless otherwise indicated, the Labour Relations Act 66 of

1995 will be used to illustrate legislative structure:

LABOUR RELATIONS ACT 66 OF 1995

[Assented To 29 November 1995] [Date of Commencement: 11 November

1996]

(Unless otherwise indicated)

(English text signed by the President)

List of amendments

If applicable, before the long title an Act will include a list of

Acts that have amended it since:

As amended by

Labour Relations Amendment Act 42 of 1996

Basic Conditions of Employment Act 75 of 1997

Labour Relations Amendment Act 127 of 1998

Labour Relations Amendment Act 12 of 2002

Intelligence Services Act 65 of 2002

Electronic Communications Security (Pty) Ltd Act 68 of 2002

General Intelligence Laws Amendment Act 52 of 2003

Prevention and Combating of Corrupt Activities Act 12 of 2004

Public Service Amendment Act 30 of 2007

List of regulations
If applicable, after the list of amendments an Act will include

A list of regulations issued in terms of the Act:

Regulations under this ActBARGAINING COUNCILS ACCREDITED BY THE CCMA, 2009

(1) (GenN 195 in GG

31925 of 27 February 2009)

BARGAINING COUNCILS ACCREDITED BY THE CCMA, 2009 (2) (GenN 863 in GG

32298 of 12 June 2009)

...

RULES FOR THE CONDUCT OF PROCEEDINGS IN THE LABOUR COURT (GN 1665 in

GG 17495 of 14 October 1996)

RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE LABOUR

APPEAL

COURT (GN 1666 of 14 October 1996)

Page 36
TARIFF OF FEES: COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION

(GN 231 in GG 34107 of 18 March 2011)

Preamble

The preamble (if there is one) states the circumstances of,

The background to and the reasons for the legislation. Unlike

Private Acts, where a preamble is always used, its use in

Ordinary Acts is usually restricted to legislation of

Constitutional or national importance. It is usually placed

After the long title and is an integral part of the legislation.

The following is the preamble to the Prevention of Illegal

Eviction from and Unlawful Occupation of Land Act 19 of

1998:

Preamble
WHEREAS no one may be deprived of property except in terms of law of

General application, and no law may permit arbitrary deprivation of property;

AND WHEREAS no one may be evicted from their home, or have their

Home demolished without an order of court made after considering all the

Relevant circumstances;

AND WHEREAS it is desirable that the law should regulate the eviction of

Unlawful occupiers from land in a fair manner, while recognising the right of

Landowners to apply to a court for an eviction order in appropriate

Circumstances;

AND WHEREAS special consideration should be given to the rights of the

Elderly, children, disabled persons and particularly households headed by

Women, and that it should be recognised that the needs of those groups

Should be considered; . . .Long title

An Act always has a long title. It is not really a title, but rather a short
Descriptive summary of the subject matter of the Act. The long title is

A part of the statute tabled for adoption by Parliament, and always

Ends with an open-ended phrase such as ‘. . . and matters incidental

Thereto’.

ACT

To change the law governing labour relations and, for that purpose—

To give effect to section 27 of the Constitution; to regulate the

Organisational rights of trade unions; to promote and facilitate

Collective bargaining at the workplace and at sectoral level; to regulate

The right to strike and the recourse to lock-out in conformity with the

Constitution; to promote employee participation in decision-making

Through the establishment of

Page 37
Workplace forums; to provide simple procedures for the resolution of

Labour disputes through statutory conciliation, mediation and

Arbitration (for which purpose the Commission for Conciliation,

Mediation and Arbitration is established), and through independent

Alternative dispute resolution services accredited for that purpose; to

Establish the Labour Court and Labour Appeal Court as superior

Courts, with exclusive jurisdiction to decide matters arising from the

Act; to provide for a simplified procedure for the registration of trade

Unions and employers’ organisations, and to provide for their

Regulation to ensure democratic practices and proper financial control;

To give effect to the public international law obligations of the Republic

Relating to labour relations; to amend and repeal certain laws relating

To labour relations; and to provide for incidental matters.

Enacting provision
This acknowledges the constitutional authority of the body

That is enacting the primary legislation (the national

Legislative authority is vested in Parliament; the provincial

Legislative authority is vested in the provincial legislatures;

And the municipal legislative authority is vested in the

Municipal councils):

BE IT ENACTED by the Parliament of the Republic of South Africa as follows:—

Table of contentsThe table of contents is the ‘road map’ of the Act. It not only

Provides a quick reference to the reader as to where to find

Particular provisions, but it also gives an initial overview of

The legislative scheme:

Contents of Act

Chapter I
Purpose, Application and Interpretation

1. Purpose of this Act

2. Exclusion from application of this Act

3. Interpretation of this Act

...

As a ‘road map’ the table of contents of the Income Tax Act

58 of 1962 (which is amended very frequently) is a confusing

Reflection of the continuous stream of amendments

(including the numbering of repealed provisions retained as

Placeholders).

Page 38

Definitions

The definitions serve as an ‘internal dictionary’ for the

Particular legislation. Definitions are usually found at the

Beginning of an Act, but in the case of the Labour Relations

Act they are placed at the end of the Act:

213 Definitions

In this Act, unless the context otherwise indicates—

‘area’ includes any number of areas, whether or not contiguous;

‘auditor’ means any person who is registered to practise in the Republic as

A public accountant and auditor;

‘bargaining council’ means a bargaining council referred to in section 27

And includes, in relation to the public service, the bargaining councils referred

To in section 35;

...

But in the Labour Relations Act there are also definitions in

Other parts of the Act, for example:CHAPTER V

WORKPLACE FORUMS (ss 78-94)

78 Definitions in this Chapter

In this Chapter—

‘employee’ means any person who is employed in a workplace,

Except a senior managerial employee whose contract of employment or

Status confers the authority to do any of the following in the workplace

...

[Sub-para. (i) deleted by s. 23 of Act 42 of 1996.]

Represent the employer in dealings with the workplace

Forum; or

Determine policy and take decisions on behalf of the

Employer that may be in conflict with the representation of

Employees in the workplace;

...

Purpose and interpretation

Purpose and interpretation clauses are frequently included in

Post-1994 legislation. These clauses give an immediate

Overall picture of what the Act wants to achieve, and they

Help to explain the purpose of the Act and how it should be

Interpreted, for instance:

1. Purpose of this Act

The purpose of this Act is to advance economic development, social

Justice, labour peace and the democratisation of the workplace by fulfilling the

Primary objects of this Act . . .

Page 39

...
Regulations & ministerial powers

207 Ministers empowered to add and change to Schedules

(1) The Minister, after consulting NEDLAC, by notice in the Government

Gazette may change, replace or add to Schedules 2 and 4 to this Act and the

Schedule envisaged in subsection (3).

[Sub-s. (1) substituted by s. 50(a) of Act 42 of 1996 and by s. 26(a) of

Act 127 of 1998.]

....
208 Regulations

The Minister, after consulting NEDLAC and when appropriate, the

Commission, may make regulations not inconsistent with this Act relating to

Any matter that in terms of this Act may or must be prescribed;

And
Any matter that the Minister considers necessary or expedient to

Prescribe or have governed by regulation in order to achieve the

Primary objects of this Act.

[Date of commencement of s. 208: 1 January 1996.]

Repeal/amendment of legislation

Repeals and amendments of an Act are made by means of

Another Act. When a new Act is passed, other existing Acts

May need to be amended or repealed. The new Act must

Contain a section that provides for amendments and/or

Repeals. The conventional way of dealing with repealed or

Amended Acts is with a schedule at the end of the Act.

211 Amendment of laws

Each of the laws referred to in items 1 and 2 of Schedule 5 is hereby

Amended to the extent specified in those items.

212 Repeal of laws, and transitional arrangements

(1) Each of the laws referred to in the first two columns of Schedule 6 is

Hereby repealed to the extent specified opposite that law in the third column

Of that Schedule.

(2) The repeal of those laws does not affect any transitional arrangements

Made in Schedule 7.

(3) The transitional arrangements in Schedule 7 must be read and applied

As substantive provisions of this Act.

Short title and commencement

The short title is the title of the Act and is usually the last

Section in an Act.

Page 40

214 Short title and commencement

 (1) This Act is called the Labour Relations Act, 1995.

(2) This Act will come into operation on a date to be determined by the

President by proclamation in the Government Gazette, except in the case of

[Date of commencement of s. 207: 1 January 1996.]

Any provision in relation to which some other arrangement regarding

Commencement is made elsewhere in this Act.

[Sub-s. (2) substituted by s. 53 of Act 42 of 1996.]

Schedules

These are used to deal with technical detail that will

Otherwise clog up the main body of an Act (eg Schedule 1 of

The Constitution, which contains a description of the national

Flag). Schedules are also used when several Acts or parts of

Acts are repealed, or for a large number of amendments.

Numbering in legislation

The following is the traditional numbering system used in

Primary legislation:

Section 1—Arabic figures

Subsection (1)—Arabic figures in brackets

Paragraph (a)—italicised lowercase letter in italicised

Brackets

Subparagraph (i)—Roman figures in brackets

Item (aa)—italicised lowercase letters in italicised

Brackets

Subitem (AA)—italicised uppercase letters in italicised

Brackets

Where an additional section is inserted into an Act through

An amendment Act, the section to be inserted takes the

Number of the section after which it is to be inserted and

Gets a capital letter after it. If, for example, you need to

Insert a new section between the current ss 66 and 67, you

Will insert s 66A. This system of numbering is necessary,

Otherwise the whole Act would have to be re-numbered, and

Such renumbering will have to be done by means of an

Amendment Act. However, in practical terms renumbering is

Impossible: every cross-reference in other legislation would

Have to be amended as well, but references to the previous

Numbering in case law and text books cannot be changed. In

Older legislation the inserted sections were numbered bis,

Ter, quat, and so on.

Page 41
For example:

200A Presumption as to who is employee

(1) Until the contrary is proved, a person who works for, or renders

Services to, any other person is presumed, regardless of the form of the

Contract, to be an employee, if any one or more of the following factors are

Present:

The manner in which the person works is subject to the control or

Direction of another person;

...

[S. 200A inserted by s. 51 of Act 12 of 2002.]

When a part of legislation (be it a chapter, section,

Paragraph, and so on) is repealed, the number of the

Repealed provision remains as a placeholder to avoid

Wholesale renumbering. For example, in the Income Tax Act,

Where a number of provisions of the Act were repealed, the

Original numbers remain as placeholders:

49 . . .

[S. 49 repealed by s. 31(1) of Act 101 of 1990.]

50 . . .

[S. 50 repealed by s. 32(1) of Act 101 of 1990.]

51 . . .

[S. 51 repealed by s. 33(1) of Act 101 of 1990.]

52 . . .

[S. 52 repealed by s. 34(1) of Act 101 of 1990.]

53 . . .

[S. 53 repealed by s. 35(1) of Act 101 of 1990.]

General Explanatory Note

When an amendment Bill is published in the official Gazette

For public comment, there is usually a General Explanatory

Note included on the second page, with the following

Explanation:

Words in bold type and in square brackets indicate deletions from existing

Enactments; and

____ Words underlined with a solid line indicate insertions in existing enactments.

Legislative ‘codes’

Amendments (including insertions and deletions) are also

Indicated clearly in square brackets after the relevant

Provisions in the amended version of an Act. These indicators

Help the interpreter of the Act in a number of ways, for

Example:

Page 42
It may indicate a particular date of commencement for

The provision.

It will serve as a historical paper trail should a lawyer

Have to use the previous versions of the legislation (for

Pending cases or as an aid to interpreting the amended

Provisions). Please bear in mind that although an

Amendment Act is a separately enacted law-text in its own

Right, the amendments in an amending Act will later be

Incorporated into the initial Act. The legislative ‘codes’ serve

As a route map or cross-reference to the amending Acts. In

Other words, the ‘codes’, the list of amending Acts at the

Beginning of the Act and the amending Acts themselves

Should correlate.
The following are examples of such ‘codes’:

Where a section was amended:

[S. 1 amended by s. 1 of Act 45 of 1961.]

Where a definition in the definition section was first

Amended, then substituted and then finally deleted:

‘dependant’ . . .

[Definition of ‘dependant’ substituted by s.4 (1)(b) of Act 88 of 1971 and

By s. 4(1)(d) of Act 85 of 1974, amended by s. 3(1)(a) of Act 104 of

1979 and by s. 2(1)© of Act 104 of 1980 and deleted by s. 2(b) of Act

90 of 1988.]
Where a subsection was inserted without the need for

Renumbering:

[Sub-s. (7) added by s. 4(b) of Act 16 of 2004.]

Where a paragraph was inserted without the need for

Renumbering:

[Para. © added by s. 4(b) of Act 201 of 1993.]

Where a section was amended and later repealed in

Full:

9...

[S. 9 substituted by s. 3 of Act 45 of 1961 and repealed by s. 344 (1) of

Act 51 of 1977.]

Where a new section was inserted between ss 16 and

17:

[S. 16A inserted by s. 13 of Act 102 of 1967.]

Where a new section was inserted between ss 5 and 6,

Amended several times and later repealed in full:

5A . . .

[S. 5A inserted by s. 6 of Act 88 of 1971, amended by s. 5(1) of Act 85

Of 1974, by s. 5 of Act 69 of 1975, by s. 6 of Act 103 of 1976, by s. 6

Of Act 113 of 1977 and by s. 5 of Act 104 of 1979 and repealed by s. 4

Of Act 104 of 1980.]

2.5 RELATIONSHIP BETWEEN LEGISLATION AND COMMON LAW

Paragraph 2.5 of the textbook refers to the relationship between legislation and

Common law. Prior to 1994 (before the advent of the new constitutional

Dispensation) the courts invoked common law rules when interpreting legislation.

Common law presumptions are examples of such rules. Although the courts can

Apply common law presumptions, they have to be consistent with the Constitution.
2.5 Relationship between legislation

And common law

The Roman-Dutch common law is not sacrosanct,

Untouchable or protected from constitutional scrutiny,

Although some lawyers still believe otherwise. The

Constitution is the highest law in the land, and any law

(including the common law) inconsistent with the

Constitution is invalid (s 2), and in terms of s 39(2), the

Courts must promote the spirit, purport and objects of the Bill

Of Rights when they develop the common law. In Carmichele

V Minister of Safety and Security (above) the Constitutional

Court stressed that a court is obliged to develop the common

Law in view of the Constitution. In Pharmaceutical

Manufacturers Association of SA; In re: Ex parte Application

Of the President of the Republic of South Africa (above) para

44 Chaskalson P very clearly placed the common law in a

Constitutional framework:

I cannot accept this contention, which treats the common law as a body of

Law separate and distinct from the Constitution. There are not two systems
Of law, each dealing with the same subject-matter, each having similar

Requirements, each operating in its own field with its own highest Court. There

Is only one system of law. It is shaped by the Constitution which is the

Supreme law, and all law, including the common law, derives its force from the

Constitution and is subject to constitutional control.

This does not mean that the different legal traditions have

Been abolished. We still have Roman-Dutch common law,

African customary law, legislation and all the various sources

Of law and legal cultures. However, since 1994, both

Legislation and the common law are trumped (overruled) by

The supreme Constitution. The Constitution is the highest law

Of the land, and trumps both common law and legislation.

Although it is presumed that the legislature does not intend

To alter the common law more than is necessary, common

Law may expressly be trumped by legislation. It is important

To note that common law is not ‘repealed’ by legislation, but

‘trumped’ or overruled. This means that if legislation trumps

A rule of common law, and that legislation itself is later

Repealed, the common-law rule will revive again (Rand Bank

Ltd v De Jager 1982 (3) SA 418 ©).

Legislation trumps common law . . . most of the time. Of

Course it is possible for new legislation to provide expressly

That it will operate side-by-side with existing common-law

Rules (for example, s 2(10) of the Consumer Protection Act):

Page 44

(10) No provision of this Act must be interpreted so as to preclude a

Consumer from exercising any rights afforded in terms of the common law.
[Date of commencement of s. 2: 24 April 2010.]
However, just to make things really interesting, certain

Common-law rules (such as presumptions) are used to

Interpret legislation. The courts and other interpreters may

Still rely on these common-law maxims and presumptions in

So far as they are not in conflict with the values of the

Constitution. In the past, the common-law presumptions of

Interpretation should have played a more important role

During the interpretation process. These presumptions may

Be described as preliminary assumptions as to the meaning

Of the legislation. In other words, it is assumed that

Legislation has a particular purpose, which should accomplish

An ideal, predefined result. In the absence of a judicially

Enforceable Bill of Rights in South Africa before 27 April

1994, one could have referred to the presumptions as a

Rebuttable ‘common-law bill of rights’. The principles of

Justice, fairness and individual rights were always part of our

Law. Unfortunately those values were rebutted, ousted,

Debased and ignored during the era of parliamentary

Sovereignty.

The role and character of the presumptions of statutory

Interpretation have been fundamentally changed by the new

Constitution. If one compares these presumptions with the

Fundamental rights in the Bill of Rights, it appears that many

Of the values underpinning the presumptions of

Interpretation are now to a large extent subsumed in the Bill

Of Rights. Although these presumptions have not been

‘abrogated’ by the Constitution, most of the underlying

Principles of the rebuttable common-law presumptions are

Reflected in the Constitution. Because the fundamental rights

Are entrenched in the Constitution, it must be accepted that

Some of the presumptions will be applied to an increasingly

Lesser extent in the future, possibly even disappearing as a

Result of disuse. Some of the more important presumptions

Will be discussed in the following chapters.

TEST YOURSELF

(1) What is “legislation”?

(2) Distinguish between original and subordinate or delegated legislation and

Give examples of each.

(3) List the documents that, although they are published in the Government

Gazette, do not constitute legislation.

 (4) Explain the basic structure/parts of legislation to a colleague.

(5) Briefly discuss the general effect of the Constitution on the operation of

Common law presumptions.

STUDY UNIT 2

What is legislation?

Legislation (also called “statute law”) is written law enacted by a body or person authorized to
do

So by the Constitution or other legislation.

Du Plessis (2002:1) refers to legislation as “enacted law-texts”. What does “enacted law-texts”

Means:

 “Enacted” means it was adopted/issued/promulgated in terms of the prescribed legal

Requirements;

 “Law” means it has the force of law

 “Text” means it is written law.

Distinguish between original and subordinate or delegated legislation and give examples of each.
Original (primary) legislation derives from the complete and comprehensive legislative capacity

Of an authorized legislative body. The hierarchical status of original legislation in South Africa is

Based on 2 interrelated principles:

1. It is enacted by democratically elected, deliberative, law-making bodies;

2. The original law-making powers of the elected deliberative legislatures are always
founded

In the Constitution, but are derived in 2 different ways:

2.1 directly from the Constitution

2.2
2.3 indirectly from the Constitution
2.4
EXAMPLES:

 Acts of Parliament

 New Provincial Acts (1994-)

 Provincial ordinances (1961 – 1986)

 Legislation of the former homelands

 Legislation of the former TBVC states

 New municipal legislation

Subordinate legislation is a violation of the separation of powers principle because unelected

(appointed) persons, sometimes members of the executive, obtain law-making powers.

Acts of Parliament and other forms of original legislation are sometimes drafted in broad terms

(skeleton form); subordinate (delegated) legislation then “adds to the flesh”.

EXAMPLE
The fuel price in South Africa.

Such subordinate (delegated) legislative enactments are known as legislative administrative act

Whose validity may be reviewed by the courts.

FURTHER EXAMPLES

 New and existing provincial proclamations and regulations

 Old wine in new bags, applying old order legislation in the new constitutional order

 Law of general application

List the documents that, although they are pubished in the Government Gazette, do not constitute

Legislation.

1. Common-law rules and rules of indigenous law also constitute law however, these rules

Are not enacted as legislation by an authorized lawmaker;

2. Case law is also binding law and is found in texts, but since this judge-made law is not

Issued by lawmakers it does not constitute legislation;

3. Policy documents such as Green and White Papers, interpretation notes, explanatory

Memoranda and practice notes also constitute law texts but as they were not enacted by

Lawmakers, they do not constitute legislation.

Explain the basic structure/parts of legislation to a colleague.

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.

This will include:

1. List of amendments

2. List of regulations

3. Preamble

4. Long title

5. Enacting provision

6. Table of contents

7. Definitions

8. Purpose and interpretation

9. Regulations and ministerial powers

10. Repeal/amendment of legislation

11. Short title and commencement

12. Schedules
 13. Numbering in legislation

14. General explanatory note

15. Legislative “codes”

Briefly discuss the general effect of the Constitution on the operation of common law principles.

The courts are obliged to develop the common law in view of the Constitution.

However, since 1994, both legislation and the common law are trumped (overruled) by the

Supreme Constitution. The Constitution is the highest law of the land, and trumps both common

Law and legislation.It is important to note, that common law is not ‘repealed” by legislation but
“trumped” or overruled.

This means that if legislation trumps a rule of common law, and that legislation itself is later

Repealed, the common-law rule will revive again.

Look at Section 89 of the Municipal Electoral Act 27 of 2000. Do the same rules and principles

Of interpretation apply to both the Act and the regulations?

Yes, section 1 of the Interpretation Act states explicitly that the rules of interpretation that are
Prescribed by the Act apply to the “interpretation of every law” and to “regulations” that were

Issued in terms of that law. The Municipal Electoral Act is also known as the enabling Act or

Original legislation, and the regulations as subordinate legislation. In spite of

CHAPTER 2 – WHAT IS LEGISLATION?

1 of the 3 formal sources of law in SA (the other 2 are judicial precedent & custom) – Excludes
CL

Note: the importance of distinguishing btw legislation & other types of law lies in the fact that
rules &

Principles of interpretation apply on to the interpretation of legislation

 Botha explains legislation (aka “statute law”) as: Written law enacted by a body / person

Authorised to do so by the Const / other legislation

 Du Plessis refers to legislation as: “Enacted law-text”

“Enacted” : adopted/issued/promulgated ito prescribed legal requirements

“Law” : has the force of law

“Text” : written law

 According to Interpretation Act (ss1 and 2 read together) legislation consists of:

O Any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or

Orders; and

O Any other enactment having the force of the law

 According to the Const, the legislative menu consists of the following:

O National and provincial legislation;

O Proclamations, regulations & other instruments of subordinate legislation;

O Assigned legislation;

O Old order legislation (defined in item 1 of Schedule 6 as any legislation enacted before

Interim Const of 1994);

O Legislation in the new constitutional order since 1994; and

O Municipal laws

Note:
Interpretation Act and Const refer to – Legislation emanating from certain geographical areas
(national,

Provincial and local authorities); AND A time-line (old order and post-1994 legislation); AND

Hierarchical distinction (i.e. instruments of subordinate legislation)

As such, “legislation” must be understood, interpreted & applied ito a:

(1) Horizontal timeline;

(2) Geographical space; and

(3) Vertical hierarchal authority

4 CATEGORIES OF LEGISLATION
5
1. CHRONOLOGICAL (HISTORY)

Refers to history – legislation is categorised ito a chronological timeline

a. Legislation before 1806

O Statutes of the Staten-Generaal of Netherlands

O Placaaten (statutes) of Holland

Note: technically classed as legislation – but became part of SA CL with no formal procedures

Required for their demise (ending) & they may be abrogated (nullified / abolished) by disuse =

The definitions of legislation (statute law) & rules of statutory interpretation do not apply to

Them

b. Old order legislation (before 1994 Interim Const)

Defined in Item 2 of Schedule 6 of 1996 Const as any legislation in force before the interim

Const took effect in 1994

Divided into 2 historical eras:

(1) Pre-Union legislation (1806 – 1910)

Legislation adopted btw the British annexation of the Cape in 1806 & creation of Union of

SA in 1910 = consists of legislation of the British colonies & the Boer Republics

Most of these had been repealed / incorporated into legislation of the Union (1910 – 1961)

& the Republic (since 1961) – however, according to the Department of Justice and

Constitutional Development, on 30 March 2007, some examples of pre-Union legislation

Still in force (and probably in conflict with Const & other more recent legislation) include:

 Lords Day Observance Act of 1895

• Sunday Act of 1896; and
 Police Offences Ordinance of 1902

(2) Legislation btw Union & democratic era (1910 – 1994)

Most of existing SA legislation – i.e.:

 Acts of Parliament

 Legislation of the “independent homelands” / TBVC States (Transkei /

Bophuthatswana / Venda / Ciskei)

 Legislation of former self-governing territories / homelands (Kangwane /

Gazankulu / Lebowa / KwaZulu / Kwandebele / QwaQwa)

 Provincial ordinances enacted by provincial councils of four “white-controlled”

Provinces (Transvaal / Cape / OFS / Natal from 1910 – 1986)

 Proclamations issued by administrators of the four “white-controlled” provinces

After the provincial councils were abolished (1986 – 1994)

 By-laws enacted by local authorities (town councils & municipalities); and

 Other existing delegated (subordinate) legislation

c. Legislation in the new constitutional order since 1994

All legislation enacted after start of constitutional democracy in 1994 – includes:

 Interim Const;

 1996 Const;

 National legislation (Acts of Parliament & delegated legislation issued ito thereof);

 Provincial legislation (Acts of the 9 provincial legislatures & delegated legislation issued

In terms thereof;

 Other regulations & proclamations; and

 Legislation by the new local authorities created since 1994

2. HIERARCHICAL CATEGORIES

Hierarchical order =
 1. Top > Constitution – legislation in conflict with it is invalid

2. Middle > Original legislation (parliamentary / provincial & municipal legislation)

3. Bottom > Subordinate legislation (proclamations & regulations)

Courts may test all legislation (include new & old order Acts of Parliament) & government
action in light of

The Const

Note: Const used to be known as Const of RSA Act 108 of 1996 – however – Const CANNOT
merely be

Referred to as an Act because it is:

- The highest law in the land & incorporates the rights, aspirations
and values of its people – it is

Therefore degrading to number such an exalted document as an Act

- It was adopted by the Constitutional Assembly & certified by the

Constitutional Court (not just by

Parliament as all Acts are so adopted)

This mistake was corrected by the Citation of Constitutional Laws Act = no Act number is
associated with the

Const – any reference to the Const of RSA Act 18 of 1996 in any law in force immediately prior
to the

Commencement of this Act, must be construed as ref to the Const of RSA, 1996

3. STATUS

Yields a distinction btw original & subordinate legislation:

a. Original (primary) legislation

Status of original legislation is based on 2 interrelated principles:

(1) Enacted by democratically elected, deliberative (considerate), law-making bodies

(they derive

Their authority to enact legislation from the Constitution or an Act of Parliament)

Middelburg case: status of legislation is to a large extent determined by the deliberation

(discussions) during the law-making process

(2) Law-making powers of above bodies are always founded in the Constitution – but
are derived in

2 ways:
 i. Directly from the Const:

 Parliament;

 Provincial legislatures; and

 Municipalities

ii. Indirectly from the Const (assigned by another Act of Parliament / provincial
legislature):

 Provincial legislatures (additional legislative powers assigned by Acts of Parliament)

 Municipalities (additional legislative powers assigned by Acts of Parliament & additional

Legislative powers assigned by provincial Acts)

Acts of Parliament:

Parliament is the highest legislative body – it may, subject to the Const, pass legislation on any

Matter = courts may review (test) Acts of Parliament against the Const

Some Acts of Parliament have a higher status than other original legislation – however, they
always
Have to be read in conjunction with the supremacy of the Const & the Const Acts (see examples
on

Pgs 22 – 23 of TB)

New provincial Acts:

Legislation enacted by the 9 new provincial legislatures

Legislative power is derived directly from:

 Const = confers original legislative powers directly on provincial legislatures to pass

Legislation for their provinces on matters reffered to in Schedules 4 & 5 of Const; and

 Acts of Parliament = Const provides for additional legislative powers to be assigned to the

Provincial legislatures on matters outside Schedule 4 & 5

Premier case: provincial legislature cannot enact legislation dealing with its own financial

Management because the Const does not directly authorise that in Schedules 4 & 5 nor has it
been

Assigned to them by the Financial Management of Parliament Act

Courts have power to review provincial Acts in light of the BOR

Provincial Ordinances (1961 – 1986):

Provincial Government Act of 1961 empowered the then 4 provincial councils (Transvaal / OFS /

Natal & Cape) to enact provincial ordinances on matters re their respective provinces

Even though these provincial councils were abolished in 1986 by the Provincial Government Act
of

1986, the ordinances were enacted by an elected body & could alter the CL & could even have

Retroactive force – as such, they represent a category of original legislation (obviously, the

Ordinance applies only in the “old” geographical area of the former province)

Legislation of the former homelands:

ITO the repealed Self-governing Territories Constitution Act of 1971 – the homelands (self-

Governing territories) were granted complete legislative capacity re certain specific matters (i.e.

Health & welfare / education / agriculture) = particular legislative assemblies could enact any

Legislation & eve repeal / amend parliamentary legislation on these matters

(The following matters fell outside their legislative competence:

 Defence & foreign affairs;

 Repeal of the Self-Governing Territories Constitution Act; or

 Proclamations ito the Act which granted self-governing status to a particular homeland)

Legislation of former TBVC states:

Although the legislation of former “independent” homelands did not form part of SA legislation
– it

Remains valid in the area where it previously applied because these territories have been

Reincorporated into the Republic = has the same force of law as provincial Acts, provincial

Ordinances & legislation of former homelands in their respective operation

HC has jurisdiction to test its constitutionality against the provisions of the Const like that of any
Act

Of Parliament

New municipal legislation:

Const confers original legislative powers on municipal councils directly to pass by-laws for their

Areas on matters referred to in Schedules 4B & 5B of the Const w/o needing enabling

Parliamentary / provincial Acts

Additional legislative powers may be assigned to municipalities by national / provincial
legislation

Municipalities cannot delegate the making of a by-law = there is no “subordinate legislation”

Category for the local sphere

b. Subordinate legislation

Made by institutions (bodies) / functionaries (persons) that derive their power to enact such

Legislation from original legislation

Acts of Parliament & other forms of original legislation are sometimes drafted in broad terms –

Subordinate legislation then adds the flesh = because deliberative bodies are not continuously

In session to deal with every possible detail in a changing society, they delegate some powers to

Others (President / Minister / Rules Board / Council of a university) – they are then vested with

Delegated legislative powers under enabling legislation

Parliament can amend an Act of Parliament only by means of an amending Act of Parliament

Which is long, expensive & cumbersome – this is something that can rather be changed
Frequently & quickly ito of subordinate legislation

(See example on pg 26 – 27 of TB re changes in fuel prices)

Validity may be reviewed by the courts

Scope of subordinate legislation will depend on the provisions of the particular enabling

(authorising) legislation

Subordinate legislation ito national legislation:

1996 Const & an Act of Parliament may confer delegated legislative powers on certain persons /

Bodies (see examples on pg 27 of TB)

New & existing provincial proclamations & regulations:

Before provincial councils were abolished in 1986 – certain ordinances enabled members of

Various provincial executive committees to issue regulations & proclamations (Provincial

Government Act of 1986 abolished provincial councils and therefore any elected legislative

Bodies for the provinces & its accompanying original legislative competency – the legislative
Authority for the provinces was transferred to the Administrator of each province who

Enacted / amended / repealed provincial legislation by proclamation & could issue regulations
Under existing / new parliamentary Acts / provincial ordinances / new proclamations = as such –

Old order provincial legislation consists of both original & delegated legislation which may have

To be read together

The new provincial legislators will be able to empower other functionaries (i.e. Premier /

Members of a provincial Cabinet) to add the flesh to provincial Acts through proclamations /

Regulations – these will have to satisfy the requirements & limits set by the enabling Act

General notes on subordinate legislation

O During apartheid years – courts could declare subordinate legislation (i.e. regulations)

Invalid – but could not pronounce on the validity of original legislation

O Under the Const – courts can declare any category of legislation invalid

Distinction btw original and subordinate legislation is still relevant because:

1. Subordinate legislation may not be in conflict with original legislation:

Persons / bodies authorised to issue delegated legislation may do so only within the framework
of

The authority specifically bestowed on them by the enabling legislation – if not – they’ve acted
ultra

Vires (outside the scope of their powers) & the subordinate legislation could be invalidated by
the

Court

2. Subordinate legislation owes its existence & authority to its enabling legislation:

 If enabling Act is declared unconst by the court – the subordinate legislation issued ito such

Invalidated Act will also cease to exist unless the court orders otherwise

 If the enabling Act is repealed – all the subordinate legislation issued ito the repealed Act will

Also cease to exist (unless repealing Act expressly provides otherwise)

3. Parliament cannot confer a power on a delegated legislative body to amend / repeal an

Act of

Parliament

4. Although subordinate legislation must be read & interpreted together with its enabling
Act – the
Enabling Act may not be interpreted on the basis of the subordinate legislation made under it

APPLYING OLD ORDER LEGISLATION IN THE NEW CONSTITUTIONAL ORDER

Item 2 of Schedule 6 of Const = All legislation that was in force when Const took effect
continues to be in

Force, subject to any amendment / repeal & consistency with the Const

Old order legislation that remains in force continues to be administered by the authorities that

Administered it when the Const took effect, unless the Const stipulates otherwise =

 Majority of legislative enactments (i.e. those of the previous 4 former provinces / racially

Segregated local government structures / certain legislation of the former homelands & TBVC

States) are still in the statute book but were replaced by 9 provinces & 283 municipalities – each
of

The new provinces has its own provincial legislature & executive, generating new original &

Delegated legislation – often the new provincial boundaries overlap with old ones & sometimes

Neighbouring local authorities have been amalgamated – ALSO – in the apartheid era, local

Government was structured on a racial basis

 The new authorities at national, provincial & local level have to contend with both existing &
new

Legislation, applicable to old & new areas of jurisdiction

 Some of the old order legislation has been repealed fully or only in part – while the greater
part of

Existing legislation remains in force to enable the new structures & authorities to govern
&services

To continue
New Acts of Parliament have to be read together with other existing original legislation as well
as a vast amt

Of subordinate legislation to keep the system going

Ynuico case: CC held that “laws” in the Interim Const (which also provided for old order
legislation to

Remain in force until it was amended / repealed / invalidated) is not limited to primary
legislation, but

Includes subordinate legislation

Existing old order legislation cannot simply disappear – legislation has to be repealed / declared
unconst by

A competent authority = a new province (i.e. North West) will still administer existing provincial
(i.e.
Transvaal) ordinances in those provinces (i.e. North West) areas which are part of the new
province (i.e.

Transvaal) before 1994

See example on pg 30 – 33 of TB

“LAW OF GENERAL APPLICATION” ito S36 OF CONST includes all forms of legislation, as
well as CL and

Indigenous law

WHAT IS NOT LEGISLATION?

Legislation comes into operation after it has been published in the Gazette = however, not
everything

Published in the Gazette constitutes legislation

Not everything published in an official Gazette is legislation – before any doc can be classified
as legislation,

It needs to comply with all the constitutional & other legal requirements re authority, adoption &

Publication

Texts not classified as legislation:

 CL rules & rules of indigenous law – they are not enacted as legislation by an authorised
lawmaker

 Case law – made by judges & not issued by lawmakers

 Policy documents (i.e. Green & White Papers, interpretation notes, explanatory memoranda &

Practice notes) – they were not enacted by lawmakers [Akani: laws, regulations & rules are

Legislative instruments, but policy determinations are not – policy determinations cannot
override /

Amend / be in conflict with legislation, otherwise the separation btw legislature & executive will

Disappear] Note: some of these may be used during interpretation / may even be part of
legislation

In the future (i.e. Green & White Papers & draft Bills)

 Internal departmental memos & policy guidelines on how government departments apply

Legislation

 “Administrative quasi-legislation” (departmental memos & directives) – although enforceable

in

Some instances, these do not constitute subordinate legislation

 Legal notices & advertisements published in the Gazette

STRUCTURE OF LEGISLATION

List of amendments

(see eg on pg 35 of TB)

If applicable – before the long title = list of Acts that have amended the Act

List of regulations

(see eg on pg 35 of TB)

If applicable – after the list of amendments = list of regulations issued in terms

Of the Act

Preamble

(see eg on pg 36 of TB)

Usually placed after the long title

Integral part of legislation

Explains circumstances of; background to & reasons for the

Legislation
Always used in private Acts

Used in ordinary Acts if legislation is of constitutional / national

Importance

Long title

(see eg on pg 36 of TB)

Short descriptive summary of subject matter

Part of the statute tabled for adoption by Parliament & always ends

With an open-ended phrase, i.e. “…and matters incidental thereto”

Enacting provision

(see eg on pg 37 of TB)

Acknowledges constitutional authority of body that is enacting the

Primary legislation
 national legislative authority is vested in Parliament

 provincial legislative authority is vested in the provincial

Legislatures

 municipal legislative authority is vested in the municipal councils

Table of contents

(see eg on pg 37 of TB)

“Road map” – provides quick reference to where to find particular

Provisions & give an initial overview of the legislative scheme

Definitions

(see eg on pg 38 of TB)

Usually found at beginning of the Act, but can also be placed at the

End / other parts of the Act

Serves as an “internal dictionary”

Purpose & interpretation

(see eg on pg 38 of TB)

Frequently included in post-1994 legislation

Gives an immediate overall picture of what the Act wants to achieve

Helps explain purpose of the Act & how it should be interpreted

Regulations & ministerial powers

(see eg on pg 39 of TB)

See example

Repeal / amendment of legislation

(see eg on pg 39 of TB)

Made by means of another Act

When a new Act is passed, other existing Acts may need to be

Amended / repealed – new Act must contain a section that provides

For amendments and/or repeals – conventional way of dealing with

Repealed / amended Acts is with a schedule at the end of the Act

Short title & commencement

(see eg on pg 40 of TB)

Usually the last section in an Act

Title of the Act

Schedules Deal with technical details that will otherwise clog up the main body

Of an Act

Also used when several Acts / parts of Acts are repealed / for a large

Number of amendments

Numbering in legislation

(see eg on pg 40 + 41 of TB)

Traditional number system used in primary legislation is illustrated

On pg 40 of TB

Where an additional section is inserted into an Act through an

Amendment Act – section to be inserted takes the number of the

Section after which it is to be inserted & gets a capital letter after it –

[note: this is necessary, otherwise the whole Act would have to be

Re-numbered by an amendment Act – re-numbering in pratical

Terms is impossible because every cross-reference in other

Legislation would have to be amended as well, but references to the

Previous number in case law & textbooks cannot be changed

In older legislation the inserted sections were numbered bis / ter /

Quat / etc. (see eg on pg 41 of TB)

When part of legislation (i.e. chapter / section / paragraph / etc.) is

Repealed – the number of the repealed provision remains as a

Placeholder to avoid wholesale numbering (see eg on pg 41 of TB)

General explanatory note

(see eg on pg 41 of TB)

Usually included on the 2nd pg when an amendment Bill is published

In the official Gazette for public comment

Legislative “codes”

(see eg on pg 42 of TB)

Amendments (including insertions & deletions) are indicated clearly

In square brackets after the relevant provisions in the amended

Version of an Act
Help the interpreter of the Act by:

Indicating a particular date of commencement of the provision;

Serves as a historical paper trail should a lawyer have to use the

Previous versions of the legislation (for pending cases / as an aid to

Interpreting the amended provisions)

[note: although an amendment Act is a separately enacted law-text

In its own right, the amendments in an amending Act will later be

Incorporated into the initial Act – the legislative “codes” serve as a

Rout map / cross-reference to the amending Acts = the “codes”, the

List of amending Acts at the beginning of the Act and the amending

Acts themselves should correlate]

RELATIONSHIP BTW LEGISLATION & COMMON LAW

 Prior to 1994 (before new constitutional dispensation) – courts invoked CL rules when
interpreting

Legislation – CL presumptions are examples of such rules

 Although the courts can apply CL presumptions – they have to be consistent with the Const

Carmichele: CC held that court is obliged to develop the CL in view of the Const

Pharmaceutical: there is only 1 system of law & it is shaped by the Const which is the supreme
law, and all

Law, including the CL, derives its force from the Const & is subject to constitutional control

Although we still have Roman-Dutch common law, African customary law, legislation & all
various sources of
Law & legal cultures – since 1994, legislation AND CL are overruled by the supreme Const

CL may be overruled by legislation (Note: CL is not repealed by legislation, but overruled) = if

legislation

Overrules a rule of CL & that legislation is itself later repealed, the CL rule will revive again

Sometimes new legislation provides expressly that it will operate side-by-side with existing CL
rules

Certain CL rules – i.e. presumptions – are used to interpret legislation =

 Courts & other interpreters may still rely on these CL maxims & presumptions in so far as
they are not in

Conflict with the values of the Const

 Before the BOR in 1994 – presumptions were a rebuttable “common-law bill of rights”
(principles of

Justice, fairness & individual rights were always part of our law – but were rebutted / banished /

Corrupted / ignored during the era of parliamentary sovereignty) = the role & character of
presumptions

Of statutory interpretation have been fundamentally changed by the new Const – many values

Underpinning the presumptions of interpretation are now incorporated in the BOR – & because
Fundamental rights are entrenched in the Const, it must be accepted that some of the
presumptions will

Be applied to an increasingly lesser extent in the future, possibly even disappearing as a result of
disuse.

CHAPTER 3

Is it in force? The commencement of legislation

CONTENTS Chapter3

3.1 ADOPTION AND PROMULGATION 15

3.2
3.3 REQUIREMENT OF PUBLICATION 15
3.4
3.3 COMMENCEMENT OF LEGISLATION 15
3.4
3.5 THE PRESUMPTION THAT LEGISLATION ONLY APPLIES
3.6
TO THE FUTURE 16

What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Explain the difference between the promulgation and the adoption of

Legislation
 (2) Discuss the constitutional and statutory provisions that regulate the com-

Mencement of legislation

(3) Discuss the common law presumption that legislation only applies to the

Future

What is the central question to be answered?

Before legislation can be interpreted, the first question that needs to be asked is:

When did the legislation come into operation and is it still in operation? Consider

The following legislative extract:

LOCAL GOVERNMENT: MUNICIPAL ELECTORAL ACT 27 OF 2000

[Assented to 6 July 2000] [Date of commencement 11 July 2000]

(English text signed by the President)

To regulate municipal elections; to amend certain laws; and to provide for mat-

Ters connected therewith.

The Municipal Electoral Act was debated in Parliament and adopted by a major-

Ity of votes on 4 July 2000. It was signed by the President on 6 July 2008, but it

Only became law on 11 July 2008.

What accounts for this delay in the commencement of the legislation? Who

Decided that the legislation should only commence on 11 July 2000? These are

Some of the questions that will be answered in this chapter.

3.1 ADOPTION AND PROMULGATION
3.2
The passing (adoption) and promulgation of legislation are distinct processes. The

Former refers to the stages through which legislation has to pass before it is

Accepted by the legislative body concerned. Promulgation follows the adoption of

Legislation and is a necessary step in putting such legislation into operation.

3.1 Adoption and promulgation of
3.2
Legislation

It is important to distinguish between the adoption (passage)

Of legislation and its promulgation. The adoption of

Legislation by the relevant legislative body refers to the

Constitutionally prescribed and other legal processes and

Procedures required for the draft legislation to become law,

Including preparation of a draft Bill, introduction of the Bill in

The legislature, and public participation (if required), as well

As the committee stages, voting and assent. (The

Constitutional procedures to be followed in adopting Acts of

Parliament and provincial Acts are found in Chapters 4 and 6

Of the Constitution.) Once Parliament has passed (adopted) a

Bill, the Act then has to be assented to and signed by the

President. In the case of a Bill passed by a provincial

Legislature, the Premier of that province has to sign the Act.

Once assented to and signed, such an Act (parliamentary or

Provincial) becomes law (ss 81 and 123 of the Constitution).

Page 46

However, although such an Act is now legally enacted

Legislation, it is not yet in operation. For legislation to

Become operational, it needs to be promulgated.

Promulgation refers to the process of putting legislation

Officially and legally into operation (the commencement or

Taking effect of the law). In other words: somebody has to

‘pull the trigger’. In the case of subordinate legislation, the

Adoption and promulgation will, in practical terms, happen

Nearly simultaneously, because the adoption process is

Designed to be reasonably quick and easy.

3.3 REQUIREMENT OF PUBLICATION
3.4
The general rule regarding commencement is that legislation comes into operation

Upon publication in the Gazette (see section 13(1) of the Interpretation Act 33 of
1957). Sometimes legislation prescribes another date as the date of its

Commencement. In other instances, legislation may expressly indicate that it will

Commence at a later, unspecified, date that will be proclaimed. These general rules

Have found their way into the Constitution. Sections 81 (not section 80) and 123 of

The Constitution provide that an Act of Parliament or a provincial Act must be

Published and will take effect when published or on the date determined in terms

Of the Act. Since municipal by-laws may only be enforced after they have been

Published, this implies that the general rule that legislation commences after

Publication applies to them as well.

3.3 Hear Ye, hear Ye! The requirement
3.4
Of publication

Legislation is promulgated by publication in the Gazette. In

Terms of ss 81 and 123 of the Constitution (and s 13 of the

Interpretation Act), Acts of Parliament and provincial Acts

Take effect when published in the Gazette, or on a date

Determined in terms of those Acts. In terms of s 162 of the

Constitution municipal by-laws may be enforced after they

Have been published in the Gazette of the relevant province.

The Constitution does not expressly require the publication

Of subordinate legislation to commence, but s 101(3) of the

Constitution provides that ‘proclamations, regulations and

Other instruments of subordinate legislation must be

Accessible to the public’. However, both ss 13 and 16 of the

Interpretation Act require that subordinate legislation be

Published in order to commence.

Section 2 of the Interpretation Act defines a Gazette as the Government Gazette of the Colony
wherein that law was

In force in the case of legislation published before 31 May

1910, and in the case of legislation published after 31 May

1910 it is either the Government Gazette of the Republic (for

National legislation) or the relevant Provincial Gazette (for

Provincial legislation).

It was pointed out earlier that not everything published in

The Government Gazette is legislation. However, be warned:

As will be explained shortly, not all legislation published in a

Government Gazette will necessarily be in operation.

The principle underlying the requirement that legislation

Commences only upon publication is that it should be made

Known to the population to whom it applies. But what if the

Relevant Gazette only appears days after publication in most

Of the remote areas of the country? Does the particular

Legislation commence on the date of publication, or at the

Time when it

Page 47

Actually becomes known throughout the country? In Queen v

Jizwa 11 SC 387 it was held that legislation commences on

The date of publication, irrespective of whether it has come

To the knowledge of everybody in the remote areas. Steyn

(1981: 180-181) criticises this as an arbitrary application of

The rule, and suggests that there should be a period (eg

Eight days) between the de facto (actual) publication in the

Gazette and the de iure (legal) promulgation and taking

Effect of the legislation.

But why is accessibility of the law an issue? In President of

The Republic of South Africa v Hugo 1997 (4) SA 1 (CC) para

102 the Constitutional Court addressed this question as

Follows:

It can be seen then that several concerns underlie the interpretation of

‘prescribed by law’. The need for accessibility, precision and general

Application, flow from the concept of the rule of law. A person should be able
3.3 COMMENCEMENT OF LEGISLATION

As stated, legislation may come into operation at one of three times

(1) Upon publication in the Gazette

(2) On a day specified in the statute itself

(3) On an unspecified date to be proclaimed

Read the provisions of section 13(1) and (2) of the Interpretation Act 33 of 1957.

Now let’s look at each section briefly. You will realise that section 13(1) deals with

The first two options. In relation to the requirement that legislation commences on

The day of its publication, section 13 (2) states that that day shall commence
Immediately on the expiration of the previous day. Study paragraphs 3.3.1 and 3.3.3

Carefully.

ACTIVITY 3.1

(Commencement of legislation)

Look at the extract from the Municipal Electoral Act 27 of 2000 again. Are you now able to

Answer the questions that were posed above: What accounts for the delay in the

Commencement of legislation?

FEEDBACK

After the Act had gone through all the stages in the legislature, it was adopted by the

Legislature on 4 July 2000. It was then sent to the President, who assented to it by signing

The Act on 6 July 2008. However, the Act only came into operation on 11 July 2008. In terms

Of section 13(1) of the Interpretation Act, this could be because that was the day on which

The legislation was published in the Government Gazette or that was the date determined in
The statute itself.DISTINGUISH between the adoption and the promulgation of provincial

Legislation by referring to section 13(1) of the Interpretation Act 33 of 1957 and

Section 123 of the Constitution, 1996.

Feedback

Adoption of legislation refers to the different stages, readings and processes

Through which the particular legislation has to pass before it is accepted and issued

By the relevant legislative body.

When a parliament has passed a Bill, the Act then has to signed by the President.

Once it is signed, such Act become law.

For legislation to become operational, it needs to be promulgated. Promulgation

Refers to the process by which the legislation commences and takes effect; in other

Words, when it is formally put into operation. Legislation is promulgated by

Publication in an official gazette.

3.3 Pulling the trigger:
Commencement of legislation

3.3.1 Who promulgates?

It was explained earlier that the enacting clause of

Legislation affirms the legislative authority of the particular

Lawmaker. For example, an Act of Parliament will proclaim ‘BE

IT ENACTED by the Parliament of the Republic of South

Africa, as follows . . .’; or a ministerial regulation will state

That ‘The Minister of Justice

Page 48

Has made the regulations . . .’. Since it is the lawmaker who

‘speaks’, the resulting legislation is promulgated by the

Lawmaker in question. For a number of practical reasons, in

The case of Acts of Parliament or of a provincial legislature,this is not always possible. The
authority will then be
Delegated by the legislature to a member of the executive

Branch (eg the President or Premier), who will later put the

Original legislation into operation by means of a

Proclamation. This is not a general legislative authority to

Enact subordinate legislation, but rather specific delegated

Authority to put the legislation into operation on behalf of

The particular legislature. In Ex Parte Minister of Safety and

Security: In re S v Walters (above) the court explained that

The power conferred by the legislature on the President to fix

A date for commencement is a public power and has to be

Exercised lawfully for the purpose of such a power. However,

The power could not lawfully be used to block or veto the

Implementation of the new law.3.3.2 When is it in force?

(a) The default setting: on the date of publication

Section 13(1) of the Interpretation Act, as well as ss 81 and

123 of the Constitution, provide that if the legislation does

Not prescribe a date of commencement, it automatically

Commences on the day of its publication in the Gazette.

Under normal circumstances the date of publication will

Coincide with the day of commencement provided for in the

Legislation.

(b) Delayed commencement: on a future specified

Date

In terms of s 13(1) of the Interpretation Act (and ss 81 and

123 of the Constitution) the legislation as published in the

Gazette may provide for another fixed date (other than the

Date of publication) for its commencement. Since the

Legislation need not be published again on the future

Commencement date, it will automatically commence on that

Specified date.

For example:

Page 50

Citation of Constitutional Laws Act 5 of 2005

[ASSENTED TO 23 JUNE 2005]

[DATE OF COMMENCEMENT: 27 JUNE 2005]

Another danger is ‘not hearing the gun going off’, ie not

Realising that new legislation has in fact commenced.(c) Delayed commencement: on an

unspecified future

Date still to be proclaimed

Where an Act is to commence on a date to be determined by,

For example, the President, the President’s proclamation is all

That is required. The Act need not (and will not) be published

Again, and will commence on the date indicated in the

Proclamation. This means that since lawyers will not know in

Advance when that proclamation will be published, every

Gazette has to be scrutinised. Section 13(3) of the

Interpretation Act provides that if any Act provides for

Commencement on a date to be proclaimed by the President

Or the Premier of a province, there may be different

Commencement dates for different provisions of that Act.

Page 51

(c) Retroactive commencement

Retroactive commencement refers to publication on a specific

Date, but the legislation is deemed to have commenced

Earlier on a date prior to the publication. As will be explained

In 3.4 (below), constitutional and common-law rules (eg due

Process and fairness) make the application of legislation with

A retro-effect very difficult, which means that this type of

Commencement is the exception rather than the rule.

For example:

Repeal of Volkstaat Council Provisions Act 30 of 2001

[ASSENTED TO 12 NOVEMBER 2001

[DATE OF COMMENCEMENT: 30 APRIL 2001]

€ A combination of the above

When it is published, there may be a confusing combination

Of possible commencement options (specified or unspecified

Future dates) for various parts of the legislation. This means

That interpreters have to be very careful as to whether a

Particular provision is in force.

For example—a specific commencement date (with proviso):

Most of the Act will commence on a fixed date, except for a

Number of provisions (as indicated in the Act itself) which

May commence at a later specified date and/or later

Unspecified dates still to be proclaimed.

Promotion of Access to Information Act 2 of 2000

[ASSENTED TO 2 FEBRUARY 2000]

[DATE OF COMMENCEMENT: 9 MARCH 2001]

(Unless otherwise indicated)

Another example—unspecified commencement date in the

Future (with proviso):

Some provisions of the Act will commence at later

Unspecified dates still to be proclaimed, while most of the

Provisions will commence on specified dates (as indicated in

The Act itself). This was the way the Children’s Act 38 of

2005 was published initially, with the majority of the

Provisions commencing on 1 July 2007:

Children’s Act 38 of 2005

[ASSENTED TO 8 JUNE 2006]

[DATE OF COMMENCEMENT: TO BE PROCLAIMED]

(Unless otherwise indicated)

However, after it was amended by the Children’s Amendment

Act 41 of 2007, the date of commencement was changed:

Page 52

Children’s Act 38 of 2005

[ASSENTED TO 8 JUNE 2006]

[DATE OF COMMENCEMENT: 1 APRIL 2010]

(Unless otherwise indicated)

In practical terms this meant that the major part of the Act

Actually commenced on 1 July 2007, and the remainder took

Effect on 1 April 2010.

(f) When does a ‘day’ start?

In terms of s 13(2) of the Interpretation Act ‘day’ begins

Immediately at the end of the previous day (ie immediately

After midnight, at 00:01). This effectively means retroactive

Commencement, because by the time the Gazette is

Published, the legislation could already have been in force

For a few hours.

3.3.3 Jumping the gun? Section 14 of the

Interpretation Act

Two interesting aspects of the commencement of legislation

Are dealt with in s 14 of the Interpretation Act.

Section 315 (‘Short title and commencement’) of the

Children’s Act provides that the Act will commence on a date

To be fixed by the President by proclamation. The Act also

Provides that s 315 commences on 1 July 2007, which means

That Parliament itself promulgated the provision which

Authorises the President to put those remaining provisions

Into force. Butwhat if the entire Act has to be put into operation by a

Presidential proclamation? After all, subordinate legislation

Obtains its validity from original legislation. How can the

President issue a proclamation authorised by an enabling Act

That itself is not operational yet? To avoid the possibility of

An endless circle of invalidity, s 14 of the Interpretation Act

Provides that if a person has the power to put legislation into

Operation, that power may be exercised at any time after the

Legislation was passed with a view to putting it into effect.

Section 14 also deals with another practical dilemma.

Sometimes the practical application and enforcement of an

Act depends on a regulatory framework and structures being

In place when that Act commences. However, the subordinate

Legislation to support the enabling Act cannot take effect

Before the Act is operational. Section 14 solves that problem

By providing for the making of appointments and subordinate

Legislation by the relevant functionaries, provided that the

Appointments or subordinate legislation cannot be effective

Before the Act is in force. This means that the necessary

Preparations can be made and structures provisionally put in

Place—even before the enabling Act is operational—to ensure

That the total legislative scheme is in place and ready to be

Implemented when the Act enters into force. This is exactly

What the health officials should have done to avoid the

Embarrassing Pharmaceuticals fiasco (explained above). Had

The necessary regulatory framework been prepared in

Advance, it would have been ready to be put into operation

At the same time the President put the Act into effect by

Proclamation.
3.5 THE PRESUMPTION THAT LEGISLATION ONLY APPLIES TO THE
3.6
FUTURE

In the previous chapter we said that common law presumptions continue to apply

Provided they are consistent with the Constitution. The values underlying the

Presumption that legislation deals only with future matters have found their way
Into the Bill of Rights. Section 35(3)(l) provides that “every accused person has the

Right to a fair trial, which includes the right not to be convicted of an act or

Omission that was not an offence under either national or international law at the

Time it was committed or omitted”; and section 35 (3) (n) provides that “every

Accused person has the right to a fair trial, which includes the right to the benefit of

The least severe of the prescribed punishment if the prescribed punishment for the

Offence has been changed between the time that the offence was committed and

The time of sentencing”. However, legislation may expressly state that it applies

Retrospectively, provided that the retrospective application is constitutionally

Justified.
3.5 Back in the time warp: The
3.6
Presumption that legislation applies

Only to the future

3.4.1 General principle: Let bygones be

3.4.2
Bygones
The time-honoured principle (Transnet Ltd v Chairman

National Transport Commission 1999 (4) SA 1 (SCA)) that

Legislation should only apply to the future is one of the basic

Foundations of a legal system based on the rule of law. In

Fact, in the old English case of Gardner v Lucas (1878) 3 App

Cas 582 it was described as a ‘general rule of every civilised

Country’. This principle is reflected in the common-law

Presumption that the legislature intends to regulate future

Matters only, and not the past (Transnet Ltd v Ngcezula 1995

(4) SA 538 (A)).

According to case law, this rule is based on the prevention

Of unfair and unreasonable results, and to ensure

Predictability and legality: individuals must be able to know

What the law is and to adapt their conduct accordingly. It is

Therefore presumed that the legislation applies only to cases

Or transactions occurring after the coming into operation of

The Act in question (Principal Immigration Officer v

Purshotam 1928 AD 435), so that vested rights are not taken

Away (Curtis v Johannesburg Municipality 1906 TS 308). In S

V Mhlungu 1995 (3) SA 867 (CC) the court explained that the presumption was not intended to
exclude the benefits of

Rights sanctioned by new legislation, but rather to prevent

The invasion of rights. In Veldman v Director of Public

Prosecutions, Witwatersrand Local Division 2007 (3) SA 210

(CC) the well-established common-law principle was given

Express constitutional backing. The court affirmed that

Unless otherwise provided, legislation was not to be

Interpreted to take away existing rights and obligations,

Because this principle was basic to the notions of fairness and

Justice that are integral to the rule of law, a foundational

Principle (s 1) of the Constitution.

3.4.3 The difference between retroactive and

3.4.4
Retrospective

In practical terms the rule that legislation only applies to the

Future means that legislation should not have a retro-effect.

In National Director of Public Prosecutions v Carolus 1999 (2)

Page 56

SACR 607 (SCA) paras 33-34 the court explained the

Difference between the two types of retro-effect of

Legislation.

Retroactivity (‘true or strong’ retro-effect)

In this case the legislation operates as of a time prior to its

Enactment, in other words, it operates backwards in time and

Changes the law from what it was.Retrospectivity (‘weak’ retro-effect)

In this case the legislation operates for the future only, in

Line with the basic principle. The legislation is prospective,

But could impose new results in respect of a past event. It

Operates forwards, but it ‘looks backwards’ in that it attaches

New consequences for the future to an event that took place

Before the legislation was enacted. In other words, it changes

The law from what it otherwise would be with respect to a

Prior event. The legislation commences for the future from a

Particular date, but could apply to new cases and processes

(that will start after the commencement), based on earlier

Facts and circumstances (that arose prior to the

Commencement). Bear in mind that there is no express

Retroactivity involved here, because there is no

Commencement and application of the legislation ‘backwards

In time’. However, the problem is that there could be future

Application of the new legislation to new cases (with facts

And circumstances that originated before the

Commencement): in other words, there could be a practical

Retro-effect. Although retrospectivity is not as drastic as

Retroactivity, the most important consideration is still

Whether the future application of the legislation to events

From the past will be unfair, take away vested (existing)

Rights or violate substantive rightsEnter the deeming clause

The difference between retroactivity and retrospectivity lies

In the commencement date of the legislation in question. In

The case of retroactive legislation the commencement date is

Before the date of publication. This means that the legislation

Operates backwards in time, or history is rewound. Because

This kind of ‘legislative time travel’ is physically impossible,

The legislation uses a deeming clause: the legislation is

Deemed to have commenced on a date prior to publication

Date. But what is a deeming clause?

In the case of retroactive commencement it is a

Legislative exercise in ‘virtual reality’ (or legal make-believe).

Since a commencement date before the enactment of

The legislation is impossible in real physical terms, the

Legislation creates a legal fiction: the legislation does not

Change the fact; it makes-believe that the facts (reality) are

Otherwise.

Page 58

In other words, the deeming clause creates a

Presumption, in this case by providing that something is

‘deemed’ to have happened.

3.4.3 What prevents legislation from applying

With retro-effect?

This time-honoured principle is not an absolute rule. In

Terms of South African law three legal ‘obstacles’ need to be

Removed before legislation may apply with retro-effect (ie

Either retroactive or retrospective).

(a) The common-law presumption

Before the advent of constitutionalism and a supreme

Constitution, the common-law presumption that legislation

Applies only to the future was the only legal obstacle that

Stood in the way of laws with a retro-effect. However, as was

Explained earlier, legislation trumps common law, whichmeans that the legislature could trump
the presumption

Either expressly (eg the Terrorism Act of 1967), or by

Necessary implication. Remember, the presumption states

That legislation only applies in respect of the future, unless

The legislation provides otherwise.

‘By necessary implication’ means that the legislature

Actually wanted to rebut the presumption, but failed to

Express that intention clearly in the legislation. Although not

Expressly provided in the legislation, it is the only reasonable

Conclusion that can be reached—the presumption was

Rebutted by necessary implication. But if the rebuttal of the

Presumption is not expressly stated in the legislation, how

Will the courts determine whether it is done by necessary

Implication? Such a conclusion will depend on the court’s

Interpretation of the legislation in question, but remember,

This principle is all about considerations of fairness and

Vested rights. This means that a court needs to be convinced

That the legislation by implication should have a retro-effect.

Although each case will depend on the legislation as a whole,

As well as the surrounding circumstances, the courts have

Laid down a few guidelines which may help to determine

Whether the presumption is rebutted by necessary

(reasonable) implication, for instance:

Such a necessary implication could be inferred if the

Legislation would result in absurd or unfair results should it

Not have retro-effect (Lek v Estate Agents Board 1978 (3)

SA 160 ©).

Page 59

In Kruger v President Insurance Co Ltd 1994 (2) SA

495 (D) 503G the court held that it was easier to decide (by

Necessary implication) that legislation did not apply to the

Future only when vested rights would not be affected by the

Retro-effect of the legislation; or the purpose of the

Legislation is to grant a benefit or to effect even-handednessin the operation of the law..

(b) New offences and higher penalties

The second ‘obstacle’ is the prohibition of new offences and

Higher penalties with retro-effect in s 35 of the Constitution

(‘Arrested, detained and accused persons’). Section 35(3)(l)

Of the Constitution provides that a person may not be

Convicted for an act that was not an offence at the time it

Was committed. In other words, it is a basic human right that

A new offence may not be created with retro-effect.

Furthermore, s 35(3)(n) of the Constitution provides that an accused person has a right to the
benefit of the least severe

Of the prescribed punishments if the prescribed punishment

For the offence has been changed between the time that the

Offence was committed and the time of sentencing. The effect

Of these two provisions in the Bill of Rights is that new

Offences cannot be created, and existing punishment may not

Be increased, either retrospectively or retroactively.

Page 60

© Other constitutional rights

Should the first ‘obstacle’ (the common-law presumption)

And the second ‘obstacle’ (new offences and higher penalties)

Have been circumvented successfully, the retroactive or

Retrospective application of the legislation may still be

Prevented by other provisions in the supreme Constitution

(the third ‘obstacle’). Aspects such as the right to property,

The right to fair administrative justice, the right to access to

Information, et cetera, may also play a role in determining

Whether the legislation only applies to the future or not.

Whether or not the legislation passes general constitutional

Scrutiny in order to have retroactive or retrospective

Application will depend on the facts and rights involved in

Each case.
For example, let us assume a state of emergency is

Declared with express retroactive application. Such express

Retroactivity will trump the first ‘obstacle’ (the common-law

Presumption), and since there do not seem to be any new

Offences or increased penalties, the second ‘obstacle’ (s

35(3)) may also be bypassed. But the third ‘obstacle’ cannot

Be breached: in terms of s 37(2)(a) of the Constitution a

State of emergency may never be retroactive, but can only

Be prospective.3.4.4 No harm done: Exceptions to the rule

There are two instances when the principle that legislation

Only applies to the future will not apply: where the

Legislation changes procedure or where it grants benefits. At

First glance, procedure is red tape or a set of neutral

Administrative arrangements, and of course, nobody will

Argue that the retroactive granting of benefits is unfair!

(a) If the enactment deals with procedure

As a general rule, the presumption will not apply if the

Legislation deals with procedure. Although procedure may

Seem to be neutral and harmless, the courts have indicated

The there is a fine line between ‘neutral’ procedure

(formalities) and substantive rights. If substantive rights and

Obligations remain unimpaired and capable of enforcement

By using the newly prescribed procedure, then the general

Principle does not apply (Minister of Public Works v Haffejee

1996 (3) SA 745 (A)). However, if new procedure violates

Substantive rights, the general principle against legislation

With retro-effect will apply and the three ‘obstacles’ come

Into play.

In Euromarine International of Mauren v The Ship Berg

1986 (2) SA 700 (A) the court held that a provision in therelevant Act not only created a new
remedy, but also

Imposed a new obligation on persons who had no legal

Obligations in the past. This is an example where substantive

(and not merely procedural) rights are involved, and the

Presumption that legislation only applies in respect of the

Future will apply.

(b) If the retro-effect favours the individual

If the retrospective operation of legislation would benefit the

Individual, the presumption also does not apply. Remember,

The

Page 62
Reason for the principle is to avoid unfair results. If a person

Would be receiving a benefit, and no vested rights are taken

Away, the retroactive or retrospective application of the

Legislation will be beneficial and the presumption becomes

Unnecessary.
3.4.5 Retroactivity and other constitutional
3.4.6
Issues

The principle that legislation should only be prospective also

Applies to the Constitution. This means that the Constitution

Itself is also not retroactive:

As was explained earlier, all law in force when the

Constitution took effect remains in force subject to

Amendment or repeal, and subject to consistency with

The Constitution (item 2 Schedule 6 of the Constitution).

All proceedings pending before a court when the new

Constitution took effect must be finalised as if the new

Constitution had not been enacted, unless the interests of

Justice require otherwise (item 17 Schedule 6 of the

Constitution).

However, any legislative process started in terms of the

Interim Constitution, but not yet finalised when the 1996

Constitution took effect, must be finalised in terms of the

1996 Constitution (item 5 Schedule 6 of the Constitution).

TEST YOURSELF

(1) Distinguish between the adoption and the promulgation of legislation.

(2) What is meant by “commencement” in section 13(1) of the Interpretation

Act 33 of 1957?
 (3) Discuss the presumption that legislation only applies to future matters.

Also explain

(a) The reason behind this presumption, and

(b) The influence of the Constitution on this presumption.

(4) Suppose there is an Estate Duty Act of 2009 which provides that estate duty

Should be levied and paid upon the estate of every person who died after the

Commencement of this Act. The Act is published in the Gazette on Monday

9 January 2009, but only reaches the shelves at 10:00 that morning. Would the Act apply to the
estate of Ms X who died at 03h00 in the morning of

9 January 2009?
STUDY UNIT 3

Distinguish between the adoption and the promulgation of legislation.

The adoption of legislation by the relevant legislative body refers to the constitutionally
prescribed

And other legal processes and procedures required for the draft legislation to become law,
Including preparation of a draft Bill, introduction of the Bill in the legislature, and public
participation

(if required) as well as the committee stages, voting and assent. Once Parliament has passed

(adopted) a Bill, the Act then has to be assented to and signed by the President. Once assented

To and signed, such an Act (parliamentary or provincial) becomes law (ss 81 and 123 of the

Constitution).

For legislation to become operational, it needs to be promulgated. Promulgation refers to the

Process of putting legislation officially and legally into operation (the commencement or taking

Effect of th

What is meant by “commencement” in section 13(1) of the Interpretation Act 33 of 1957?

Legislation may come into operation at one of three times:

1. Upon publication in the Gazette

2. On a day specified in the statute itself

3. On an unspecified date to be proclaimed.

Discuss the presumption that legislation only applied to future matters. Also explain:

1. The reason behind this presumption; and

2. The influence of the Constitution on this presumption.

The values underlying the presumption that legislation deals only with future matters have found

Their way into the Bill of Rights. Section 35(3)(l) provides that “every accused person has the
right

To a fair trial, which includes the right not to be convicted of an act or omission that was not an

Offence under either national or international law at the time it was committed or omitted”; and

Section 35(3)(n) provides that “every accused person has the right to a fair trial, which includes

The right to the benefit of the least severe of the prescribed punishment if the prescribed

Punishment for the offence has been changed between the time that the offence was committed
And the time of sentencing”.However, legislation may expressly state that it applies
retrospectively, provided that the

Retrospective application is constitutionally justified.

In practical terms the rule that legislation only applies to the future means that legislation should
Not have a retro-effect.

There are 2 types of retro-effect legislation:

1. Retroactivity – in this case the legislation operates as of a time prior to the enactment, in

Other words, it operates backwards in time and changes the law from what it was;

2. Retrospectivity – in this case the legislation operates for the future only, in line with the

Basic principle. The legislation is prospective, but could impose new results in respect of

A past event. It operates forwards, but it “looks backwards” in that it attaches new

Consequences for the future to an event that took place before the legislation was enacted.

Suppose there is an Estate Duty Act of 2009 which provides that estate duty should be levied an

Paid upon the estate of every person who died after the commencement of this Act. The Act is

Published in the Gazette on Monday 9 January 2009, but only reaches the shelves at 10:00 that

Morning. Would the Act apply to the estate of Ms X who died at 03h00 in the morning of 9
January
2009?

CHAPTER 4

Changes to and the demise and amendment of

Legislation

CONTENTS Chapter4

4.1 GENERAL 20
4.2
4.3 AMENDMENT TO LEGISLATION 20
4.4
4.2.1 Amendment of legislation (by a competent legislature) 21
4.2.2
4.2.3 Modificative interpretation (by the courts) 21
4.2.4
4.3 INVALIDATION OF LEGISLATION (BY A COURT) 22
4.4
4.3.1(a) Unconstitutional provisions 22

4.3.1(b) Invalid delegated legislation 22

4.3.2(a) Repeal and substitution 22

4.3.2(b) Effect of repeal 23

4.5 SUSPENSION OF LEGISLATION ALREADY IN FORCE 23

4.6
4.5 THE PRESUMPTION THAT LEGISLATION DOES NOT
 4.6
INTEND TO CHANGE THE EXISTING LAW MORE THAN IS

NECESSARY 23

4.5.1 Common law 23

4.5.2 Legislation 23

What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Explain how legislation can be amended by the legislature and the courts

(2) Discuss how legislation can be declared invalid by the court

(3) Explain how legislation can be repealed and/or re-enacted by the legislature

What is the central question to be answered?

In chapter 3 we saw how legislation comes into being and is put into operation. In

This chapter, we shall explore how long legislation remains in operation, how it can

Be changed and, finally, when it ceases to be in operation.

Consider the following case by way of introduction. In 2002, the Khulumani

Support Group (representing some 30 000 victims of apartheid) announced that it

Was claiming damages from 75 multinational corporations in New York (including

IBM, De Beers and Barclays Bank), because these corporations had continued todo business
with the apartheid government during the 1980s, in spite of the fact

That apartheid had been declared a crime against humanity and that sanctions had

Been imposed against South Africa (Khulumani Support Group (and others) v

Barclays Bank (and others)). The Khulumani Support Group was relying on an old

Piece of American legislation called the Alien Torts Claims Act. The legislation was

Adopted in 1789 and gave American courts jurisdiction in cases instituted by non-

American citizens where the “law of nations” had been violated. For 200 years the

Act was rarely used in America and had been all but completely forgotten.

However, it was rediscovered in the 1980s by human rights activists, and has since

Been used on a number of occasions to claim restitution in American courts from

Multinational corporations for human rights violations committed elsewhere. (For

Example, the petroleum company Shell was sued for its logistical support of the

Nigerian government while the latter was committing widespread human rights

Abuses in their fight against rebel insurgents.) The Khulumani Support Group

Similarly claimed that the companies they were suing had all aided and abetted

Apartheid and thus contributed to the suffering of the victims which they

Represented. IBM, for example, supplied computers to the apartheid government,

Barclays Bank lent money to the apartheid government, and Shell supplied petrol

To the apartheid government.

The case was heard on 6 November 2004, but was dismissed on the basis that the

Link between the normal business activities of these companies and the suffering

Caused by apartheid had not been established. The Khulumani Support Group filed

A notice of appeal on 27 April 2005. The appeal is still to be heard.

The case raises a number of interesting questions. Was the old Act really still in

Force after all these years? Had its legal authority not diminished and its legal

Meaning changed over the centuries? Was the Act at all applicable to the claims for

Restitution brought by victims of apartheid, given that neither the idea of a

Multinational corporation nor that of a crime against humanity had even been

Thought of in 1789? Surely the drafters of the Act could not have intended it to be

Used in this manner? When the old Act is interpreted, should not the term “law of

Nations” be given the meaning which it had in 1789 as opposed to the meaning it

Has today? Some of these questions will be answered in this chapter, and some in

The chapters that follow.

4.1 GENERAL

The legal position is that all legislation remains in force until either one of two

Things happens: the legislation is amended or repealed by the legislature, or the

Legislation is amended or declared unconstitutional by the Constitutional Court.

Who may amend and repeal legislation?

It is important to understand that the Constitution is not self-

Executing. Although s 2 of the Constitution expressly states

That legislation which is in conflict with the Constitution is

Invalid, it merely means that legislation is potentially

Unconstitutional. Legislation that is inconsistent with the

Constitution will not automatically be unconstitutional and

Invalid. All legislation in force when the Constitution took

Effect remains in force until it is amended or repealed, or is

Declaredunconstitutional (item 2(1) Schedule 6 of the Constitution).

To remove potentially unconstitutional legislation, a

Competent body must either amend or repeal it, or a

Competent court must declare it unconstitutional.

As was pointed out earlier, legislation cannot fall away

Through disuse or simply disappear; it remains in force until

Amended or repealed. But amended or repealed by whom?

Legislation—enacted law-texts—is amended or repealed by

The relevant competent lawmakers, in other words, those

Bodies or persons with the legislative authority to do so.

For original legislation the legislative authority of the

Relevant legislatures includes the power to pass or amend

Any legislation before them, subject of course to the

Hierarchical and territorial competencies prescribed by the

Constitution (ss 44 and 55 read with s 68, in the case of

Parliament; ss 104 and 114 in the case of provincial

Legislatures; and s 156 in the case of municipalities).

In the case of subordinate legislation the enabling Act may

In some cases expressly state that the power to enact

Subordinate legislation includes the power to amend or

Repeal it (eg the Rules Board for Courts of Law Act, which

Empowers the Rules Board for Courts of Law to make, amend

Or repeal the rules for the Supreme Court of Appeal, the

High Courts and the lower courts). In the absence of such an

Express provision that the subordinate lawmaker may also

Amend or repeal the subordinate legislation, the common-law

Principle of implied powers will come into play: if a delegated

Lawmaker gets the power to enact subordinate legislation, it

Is assumed that such a power to make laws also by

Implication includes the power to amend or repeal (revoke,

Rescind or retract) such subordinate legislation. However, to

Avoid legal arguments about implied delegated legislative

Powers, s 10 of the Interpretation Act expressly deals with
Such a situation:

10 Construction of provisions as to exercise of powers and

Performance of duties

(1) When a law confers a power or imposes a duty then, unless the

Contrary intention appears, the power may be exercised and the duty shall be

Performed from time to time as occasion requires.

...

(2) Where a law confers a power to make rules, regulations or by-laws,

The power shall, unless the contrary intention appears, be construed as

Including a power exercisable in like manner and

Page 65

Subject to the like consent and conditions (if any) to rescind, revoke, amend

Or vary the rules, regulations or by-laws.

4.2 AMENDMENT TO LEGISLATION

Legislation can be amended or changed either by the legislature or by the

Constitutional Cour
4.2.1 Amendment of legislation (by a competent legislature)

Any competent legislature can change or amend its existing legislation by means of

Another Act. The legislature can adopt a specific amendment Act or, if it is

Reforming a whole area and many Acts, can adopt a general laws amendment Act.
4.2 Changes to legislation

4.2.1 Formal amendment of legislation by a

Competent legislature

Legislation may be amended (changed) by a competent

Legislature. That means that Parliament may amend an Act of

Parliament by means of another Act of Parliament, a

Provincial legislature may amend provincial ordinances and

Provincial Acts, and so on and so forth. This means that in

The case of primary (original) legislation the amendment of

Legislation is a lengthy and expensive process.

In practice there are two types of amending legislation:

The non-textual (indirect) amendment and the textual

(direct) amendment. A non-textual amendment occurs where

There are no direct changes to the actual wording of the

Principal (initial) legislation, but the ‘amending’ legislation

Merely describes the extent of the changes in the law with

Reference to the provisions that will be affected. For example

(as was explained earlier), item 3(2)(b) of Schedule 6 of theConstitution provides that a reference
in old order legislation

To—amongst other things—‘Administrator’ must be

Interpreted as referring to the Premier of a province, and so

On. A textual amendment, on the other hand, occurs where

The actual wording of principal (initial) legislation is changed

With additions, changes to the wording, et cetera.

If a number of Acts are amended at the same time, this

Will usually be done by means of a General Laws Amendment

Act. Specific legislation will be amended by means of specific

Amending legislation (eg the Births and Deaths Registration

Amendment Act 1 of 2002 amended only the Births and

Deaths Registration Act 51 of 1992). Some legislation is

Amended continuously—as is illustrated by the long list of

Amendments for the Income Tax Act, which is amended

Annually. The Taxation Laws Amendment Act 24 of 2011 is a

Very good example of a typical amendment Act: it consists of

A bewildering array of legislative codes, insertions, additions

And deletions.
4.2.2 Modificative interpretation (by the courts)

Tip

A more detailed discussion of modificative interpretation may be found in chapter

9 of the textbook. This paragraph should be studied together with chapter 9 and, in

Particular, with paragraph 9.4.

Botha first discusses modification in the ordinary course of things. The point is

That, sometimes, the words used in the legislation lead to absurd results, or results

Which do not serve the purpose of the legislation (or, as was said in the old days,

Could not have been intended by the legislature). In such cases, the courts have

Changed or adapted the initial meaning of the legislation in order to avoid these

Absurd or dysfunctional results. This is a completely legitimate and necessary

Exercise of judicial power.

Example
Botha proceeds to discuss the far more drastic powers to change legislation

Wielded by the Constitutional Court (i. e. during constitutional review). The

Constitutional Court can declare whole pieces of legislation, or a whole Act,

Unconstitutional. However, 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 two strategies for changing smaller parts of the

Legislation.

These strategies are called “severance” and “reading in”.

Botha discusses severance only in passing. Severance means to cut away or sever

The unconstitutional part of the legislation in order to keep the rest intact. For

Example, the court will declare a legislative provision invalid, but “to the extent

Only that” and then stipulate the part of the provision that will no longer apply.

The second strategy is reading in. This means reading new words or provisions into

The legislation. 4.2.2 Modificative interpretation by the courts

Although the courts are primarily involved in the application

Of the law, they also have a secondary, law-making function.

This

Page 66

Involves the development of the common law to adapt to

Modern circumstances, as well as giving form, substance and

Meaning to particular legislative provisions in concrete

Situations. This also means that the judiciary may modify

(change or adapt) the initial meaning of a legislative

Provision in such a way that it conforms to the purpose or

Aim of the legislation. Although judicial law-making involves

A creative judicial discretion, it must always be based on

Legal rules and principles. However, this is the exception to the rule; according to the doctrine of
separation of powers,
The various legislatures make legislation, and the courts

Interpret legislation and dispense justice.

(a) Attempts to save legislation during constitutional

Review

Testing legislation (also known as constitutional review)

Refers to the process whereby legislation which is alleged to

Be in conflict with the Constitution is reviewed or tested by

The court. The court therefore measures the legislation

Against the provisions of the Constitution and decides

Whether the legislation is valid or invalid.

If a court does declare legislation unconstitutional

(invalidating it), the legislation cannot be applied anymore.

This could create a vacuum in the legal order. Competent

Courts involved in constitutional review (the testing of

Legislation against the Constitution) may try, if reasonably

Possible, to modify or adapt the legislation to keep it

Constitutional and alive. As will be explained in Chapter 9

(‘Constitutional interpretation’), the court may then employ a

Number of corrective techniques or remedial correction of

Legislation (so-called reading-down, reading-up, reading-in

And severance) in an attempt to keep the legislation in

Question constitutional and valid.

(b) Modification of the legislative meaning during

Interpretation

As will be explained in Chapter 7, courts may under

Exceptional circumstances modify (change or adapt) the

Initial meaning of the legislative text to ensure that it

Reflects the purpose and object of the legislation.
Study this paragraph carefully and then complete the following
ACTIVITY 4.1

(Reading in)

Botha refers to the case of National Coalition for Gay and Lesbian Equality v Minister of

Home Affairs 2000 (2) SA 1 (CC). The case involved the constitutionality of section 25(5) of

The Aliens Control Act 96 of 1991 which reads: “A regional committee may, upon application

By the spouse or the dependent child of a person permanently and lawfully resident in the

Republic, authorise the issue of an immigration permit.” The section allows the spouse or

Child of a person with the status of a permanent resident to immigrate to South Africa to joinher
or his spouse or parent. However, it happened that a number of 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. The Constitutional Court agreed. The problem was

What to do next? Was the only option to declare the whole section unconstitutional? If so,
What happens to the statutory benefits of heterosexual couples? Discuss these questions

With reference to the different ways in which legislation can be amended.

FEEDBACK

The Constitutional Court decided not to throw the baby out with the bathwater. The court laid

Down the principles summarised by Botha in paragraph 4.2.2(i) and continued as follows:

“The striking down of s 25 (5) will have the unfortunate result of depriving spouses, as

Presently defined, from the benefits conferred by the section; it will indeed be ‘equality with a

Vengeance’ and create ‘equal graveyards’. The benefits conferred on spouses express a

Clear policy of the government to protect and enhance the family life of spouses. All these

Considerations indicate that, if reasonably possible, a striking down order should not be the

Remedy resorted to. Against the background of what has been said above I am satisfied that

The constitutional defect in s 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. Permanent in this context means an

Established intention of the parties to cohabit with one another permanently. No case has

Been made out for the suspension of an order giving effect to such reading in. Permanent

Same-sex life partners are entitled to an effective remedy for the breach of their rights to

Equality and dignity. In the circumstances of this case an effective remedy is one that takes

Effect immediately.”
4.3 INVALIDATION OF LEGISLATION (BY A COURT)
In terms of the doctrine of separation of powers, it isimportant to distinguish between the terms
‘repeal’ and

‘invalidation’ of

Page 67

Legislation, and to establish who is authorised to do it. Repeal

Refers to the process whereby the legislation is deleted, in

Other words, removed from the statute book. On the other

Hand, invalidation happens when the legislation is declared to

Be legally unacceptable. The legislation may no longer be

Applied, but remains on the statute book until removed by a

Competent lawmaker. Courts may not and do not repeal

Legislation—they invalidate legislation. Elected legislatures

And persons or other bodies so enabled by primary legislation

Are competent lawmakers, and they repeal legislation. Courts

Invalidate legislation on constitutional grounds (the

Legislation is declared unconstitutional because it violates

Some or other constitutional principle) or because the

Legislation does not comply with administrative law

Requirements.

Practical example:

In S v Makwanyane (above) the Constitutional

Court held that the death penalty was

Unconstitutional. However, since a court cannot

Repeal legislation, the invalidated legislation which

Provided for the death sentence remained on the

Statute books, albeit unenforceable. Parliament

Subsequently repealed all legislation relating to the

Death penalty with the Criminal Law Amendment

Act 105 of 1997.

4.3 INVALIDATION OF LEGISLATION (BY A COURT)
4.3.1(a) Unconstitutional provisions
Botha discusses when and how the Constitutional Court can declare a part or even
a whole piece of legislation invalid.
(a) Unconstitutional provisions

In terms of s 172 of the Constitution, the High Court,

Supreme Court of Appeal or the Constitutional Court may

Declare legislation unconstitutional. Legislation may be

Declared unconstitutional if it violates a fundamental right in

The Bill of Rights, or if it is in conflict with another

Constitutional requirement.

Case law examples:

In Engelbrecht v Road Accident Fund 2007 (6) SA

96 (CC) regulation 2(1)© of the regulations issued

In terms of the Road Accident Fund Act 56 of 1996

Was declared unconstitutional. The regulation

Provided that a claimant against the fund had 14

Days to submit a supporting

Page 68

Affidavit to the police, but the Constitutional Court

Held that this was too little time to give the

Claimant a fair opportunity to exercise the right of

Access to the courts (s 34 of the Bill of Rights in the

Constitution). In Matatiele Municipality v President

Of the RSA 2006 (5) SA 47 (CC) the Constitutional

Court held that part of the Constitution Twelfth

Amendment Act of 2005 and part of the Cross-

Boundary Municipalities Laws Repeal and Related

Matters Act 23 of 2005 were invalid, because the

Adoption process did not comply with the

Requirement of public participation in s 118 of the

Constitution (‘Public access to and involvement in provincial legislatures’).

When deciding a constitutional matter within its power, the

High Court, Supreme Court of Appeal or Constitutional Court

Has to declare legislation which is inconsistent with the

Constitution to be unconstitutional (s 172(1) of the

Constitution). However, in terms of s 167(5) read with s

172(2) of the Constitution, a declaration of

Unconstitutionality of legislation by a High Court or the

Supreme Court of Appeal has no force until such a

Declaration is confirmed by the Constitutional Court, but a

High Court or the Supreme Court of Appeal may make an

Order which is just and equitable (including appropriate

Interim relief). Local government legislation and delegated

Legislation may also be declared unconstitutional by the High

Court or Supreme Court of Appeal, but such invalidation

Need not be confirmed by the Constitutional Court.

As was pointed out earlier, if an enabling Act is declared

Unconstitutional by a competent court, the subordinate

Legislation issued in terms of such an invalidated Act will also

cease to exist, unless the court orders otherwise.

4.3.1(b) Invalid delegated legislation

Botha also mentions that, in the ordinary course of things, subordinate or

Delegated legislation (such as regulations) can be declared

(b) Invalid subordinate legislation

Delegated legislation may be invalidated by a court if it does

Not comply with the requirements of administrative law (eg it

Is vague, ultra vires, etc). Before 1994 this was the only real

Possible review of legislation by the courts.

Page 69

Case law example:

But how vague does subordinate legislation need to be before it will be invalidated? In MEC for
Public

Works, Roads and Transport, Free State v Morning

Star Minibus Hiring Services 2003 (4) SA 429 (O)

The court provided a number of guidelines for

Determining ‘vagueness’. The law required

Reasonable, not perfect, clarity—the legislation had

To be understandable to the reasonable person, not

To the fool. What is important is the mischief which

The legislation intended to curtail, as well the fact

That it could be applied with reasonable certainty in

Many cases. The mere fact that some words are

Vague does not necessarily lead to the whole

Provision being declared void. The court will try to

Uphold the general tenure of the regulation and to

Separate the bad from the good.

4.3.2(a) Repeal and substitution

What is the effect when legislation is not simply repealed as a whole, but only

Repealed in part or supplemented by newer legislation dealing with the same issue?

The position in this case is regulated by the Interpretation Act, 1957. Carefully

Study the wording of section 11.

Also study the difficulties which arise where only certain parts of legislation are

Repealed, and the cases mentioned by Botha.

4.3.2 Repeal of legislation by a competent

Lawmaker

(a) Substitution (repeal and replace)

When a lawmaker substitutes (repeals and replaces)

Legislation with another enactment, there might be a

Possibility that the replacing law is not in force when the

Other legislation departs from the scene. In order to prevent

This type of ‘legislative short circuit’ or gap in the law, the

Repealing legislation could expressly provide for a suitable

Transitional measure. In this regard item 9 Schedule 5

(‘Transitional Arrangements’) of the Companies Act 71 of

2008 provides as follows:

9 Continued application of previous Act to winding-up and liquidation

(1) Despite the repeal of the previous Act, until the date determined in

Terms of sub-item (4), Chapter 14 of that Act continues to apply with respect

To the winding-up and liquidation of companies under this Act, as if that Act

Had not been repealed subject to sub-items (2) and (3).(4) The Minister, by notice in the Gazette,
may—

Determine a date on which this item ceases to have effect, but no

Such notice may be given until the Minister is satisfied that alternative

Legislation has been brought into force adequately providing for the

Winding-up and liquidation of insolvent companies; and

Prescribe ancillary rules as may be necessary to provide for the

Efficient transition from the provisions of the

Page 70

Repealed Act, to the provisions of the alternative legislation

Contemplated in paragraph (a).

However, for those cases where the legislation in question

Does not provide for express transitional arrangements, s 11

Of the Interpretation Act was enacted to deal with those

Unfortunate gaps in the law if the one enactment is repealed,

But the replacement enactment has not yet become

Operational:

When a law repeals wholly or partially any former law and substitutes

Provisions for the law so repealed, the repealed law shall remain in force until
The substituted provisions come into operation.

This means that if an enactment has been repealed and is

Replaced by another, but the replacement is not yet

Operational (for whatever reason), the repealed provision will

Remain in force—although repealed—until the replacement is

In force.

Case law example:

In S v Koopman 1991 (1) SA 474 (NC) the accused

Was found guilty in the magistrate’s court of a

Contravention of the Road Traffic Act 29 of 1989

And sentenced to a fine, as well as to an

Endorsement of his driver’s licence. On review his

Lawyer argued that the endorsement was invalid,

Because the Cape Province Road Traffic Ordinance

21 of 1966 had been repealed by the Road Traffic

Act 29 of 1989. The provisions in the Act which

Authorised the suspension, endorsement or

Rescission of driver’s licences had not yet come into

Operation. However, the court held that in terms of

S 11 of the Interpretation Act the provision in the

Repealed ordinance providing for such endorsement

Was still in operation. The endorsement of the

Licence by magistrate’s court was then confirmed.

Practical examples:

The Child Care Act 74 of 1983 had been repealed in

Total by the new Children’s Act 38 of 2005 (s 313

Read with Schedule 4). The major part of the

Children’s Act commenced on 1 July 2007, and the

Remainder took effect on 1 April 2010. This meant

That a number of provisions in the 1983

Page 71

Child Care Act (although repealed) remained in

Force until the corresponding replacements in the

New 2005 Children’s Act finally entered into force

On 1 April 2010.

The Human Tissue Act 65 of 1983 was repealed

And replaced by the National Health Act 61 of 2003.

The National Health Act commenced on 2 May

2005, unless otherwise indicated. One of the parts

Of the National Health Act that did not commenceon 2 May 2005 was Chapter 8 (‘CONTROL
OF USE

OF BLOOD, BLOOD PRODUCTS, TISSUE AND

GAMETES IN HUMANS’), which meant that the

Corresponding Chapter 2 of the repealed Human

Tissue Act (‘TISSUE, BLOOD AND GAMETES OF

LIVING PERSONS, AND BLOOD PRODUCTS’)

Remained in operation until Chapter 8 of the

National Health Act was finally put into operation.

The remainder of the National Health Act took

Effect on 1 March 2012, with the exception of s 53

(which had commenced on 30 June 2008), and ss

55, 56 and 68 (which had commenced on 17 May

2010). Consequently Chapter 2 of the Human

Tissue Act (which in some form or another

Remained operational through the intervention of s

11 of the Interpretation Act) was finally put to rest

On 1 March 2012, nearly seven years after the rest

Of the National Health Act had commenced.

4.3.2(b) Effect of repeal

When a piece of legislation is repealed, what is the effect of this on existing rights

And proceedings? The position is regulated by the Interpretation Act, 1957. Study

The wording of section 12 in detail. All the subsections discussed by Botha

Essentially rest on the same principle: that everything which was done or achieved

Or began before an Act was repealed remains in place or must be completed as if

The Act were still in force. A good example is the case of Nourse v Van Heerden 1999

(2) SACR 198 (W), which is discussed by Botha and must be studied carefully.(b) Repeal
(deletion)
(3)
(4) Repeal is the revocation of legislation by the relevant
(5)
(6) Competent lawmaker. The legislation is not changed or
(7)
(8) Substituted (replaced); it is deleted (removed) from the
(9)
(10) Statute book. In the case of individual provisions of original
(11)
(12) Legislation, all that remains will be the numbering (as
(13)
(14) Placeholders) and the legislative codes. However, what is the
(15)
(16) Effect of the repeal of legislation on pending cases? Will the
(17)
(18) Repeal revive anything previously repealed? Section 12 of
(19)
(20) The Interpretation Act deals with the consequences when
(21)
(22) Legislation is repealed.
(23)
(24) Section 12(1) of the Interpretation Act
(25)
(26) Where a law repeals and re-enacts, with or without modifications, any
(27)
(28) Provision of a former law, references in any other law to the provisions so
(29)
(30) Repealed shall, unless the contrary intention appears, be construed as
(31) References to the provisions so re-enacted.
(32)
(33) If a provision X is repealed and later re-enacted as Y, all
(34)
(35) References to X in other existing legislation must be
(36)
(37) Interpreted as being references to Y.
(38)
(39) Page 72
(40)
(41) Section 12(2) of the Interpretation Act
(42)
(43) Where a law repeals any other law, then, unless the contrary intention
(44)
(45) Appears, the repeal shall not—
(46)
(47) Revive anything not in force or existing at the time at which the
(48)
(49) Repeal takes effect; or
(50)
(51) Affect the previous operation of any law so repealed or anything
(52)
(53) Duly done or suffered under the law so repealed; or
(54)
(55) Affect any right, privilege, obligation, or liability acquired, accrued,
(56)
(57) Or incurred under any law so repealed; or
(58)
(59) Affect any penalty, forfeiture, or punishment incurred in respect of
(60)
(61) Any offence committed against any law so repealed; or
(62)
(63) Affect any investigation, legal proceeding, or remedy in respect of
(64)
(65) Any such right, privilege, obligation, liability, forfeiture, or punishment as
(66)
(67) Is in this sub-section mentioned;
(68)
(69) And any such investigation, legal proceeding, or remedy may be instituted,
(70)
(71) Continued, or enforced, any such penalty, forfeiture, or punishment may be
(72)
(73) Imposed, as if the repealing law has not been passed.
(74)
(75) Section 12(2) is a typical transitional provision. Section
(76)
(77) 12(2)(a) means that a repealed Act does not regain the force
(78)
(79) Of law if the repealing Act itself is repealed. If an Act, which
(80)
(81) Declared a particular action illegal, is repealed, the repeal
(82)
(83) Does not have retroactive effect, declaring legal that which
(84)
(85) Was illegal before the repeal; and if an amendment Act is
(86)
(87) Subsequently repealed, the amendment does not lapse with
(88)
(89) The repeal (R v Maluma 1949 (3) SA 856 (T)).
(90)
(91) Paragraphs (b) to € of s 12(2) are similar in principle: all
(92)
(93) Actions, transactions, processes, prosecutions, enforcement
(94)
(95) Of rights and remedies, et cetera, which have been started,
(96)
(97) But not yet completed, in terms of legislation which has
(98)
(99) Meanwhile been repealed, must be completed as if the
(100)
(101) Legislation has not been repealed. This also means the
(102)
(103) Following:•
(104)
(105) •
(106)
(107) •
(108)
(109) •
(110)
(111) It forms a bridge between pending actions and the
(112)
(113) Repealed legislation; the current position is preserved until
(114)
(115) The pending case is finished (Transnet Ltd v Ngcezula
(116)
(117) (above)).
(118)
(119) Actions executed legally and properly in accordance
(120)
(121) With legislation, before that legislation is repealed, remain
(122)
(123) Valid and in force after the repeal.
(124)
(125) This provision deals with rights derived from legislation
(126)
(127) Only, and not with those stemming from common law
(128)
(129) (Garydale Estate and Investment Co (Pty) Ltd v
(130)
(131) Johannesburg Western Rent Board 1957 (2) SA 466 (T)).
(132)
(133) Page 73
(134)
(135) The right or privilege in question needs to have been
 (136)
(137) Acquired or accrued in terms of the repealed legislation
(138)
(139) Before the repeal (Mahomed v Union Government 1911 AD
(140)
(141) 1).
(142)
Another case law example:

Nourse v Van Heerden 1999 (2) SACR 198 (W) is a

Very good example of the application of the demise

Of legislation, s 12(2) of the Interpretation Act, as

Well as of retroactivity. During 1992 a gynaecologist

And obstetrician from Durban was charged in terms

Of the Abortion and Sterilization Act 2 of 1975 with

The performance of illegal abortions. His trialcommenced on 27 November 1992, but was not
yet

Finished by 1997. On 1 July 1997 his legal

Representative brought an application to have the

Charges against his client dropped, since at that

Stage abortions were not illegal anymore and as a

Result his client’s actions no longer constituted

Crimes. The legal representative of the physician

Based his application on the following arguments:

The provisions of the Abortion and

Sterilization Act governing illegal abortions have

Not been applied since the mid-1990s and as a

Result those provisions were abrogated by disuse.

The Abortion and Sterilization Act was

Repealed by the Choice on Termination of Pregnancy

Act 92 of 1996 in so far as it relates to abortion

(the Choice on Termination of Pregnancy Act

Entered into force on 1 February 1997).

In terms of the fundamental values referred

To in s 1 of the Constitution, as well as the Bill of

Rights (especially s 9 (the right to equality), s 12(2)

(a) And (b) (the right to make decisions concerning

Reproduction and security in and control over one’s

Body), s 14 (right to privacy) and s 27(1)(a) (the

Right to reproductive health care)), the prohibition

Of abortions is in any event retroactively

Unconstitutional.

The court found that legislation could not be

Abrogated by disuse, and had to be repealed by a

Competent legislature. Existing legislation remained

In force until repealed or declared unconstitutional.

The trial started before the repeal of the Abortion

Act, and in terms of s 12(2) of the Interpretation

Act the trial had to be completed as if the Abortion

Act had not been repealed. Furthermore, the trial

Started before either the interim Constitution orthe 1996 Constitution

Page 75

Commenced. Since none of the Constitutions was

Retroactive, the trial had to be completed in terms

Of the law existing at the start of the trial. Finally,

Legislation is not automatically unconstitutional, and

The Abortion Act was never declared

Unconstitutional by any court of law.

Repeal of legislation incorporated by reference

When A repeals B, but some of the provisions of B were also

Incorporated into other legislation by reference, those

Incorporated provisions in the other legislation will not

Automatically be repealed by A as well, unless A contains

Express or implied provisions to that effect. In Solicitor-

General v Malgas 1918 AD 489 the court held that if the

Provisions of earlier legislation are incorporated into

Subsequent legislation, the incorporated provisions are not

Affected when the earlier legislation is repealed. These

Provisions were, in effect, adopted twice as legislation, and

The repeal of the earlier legislation did not automatically

Repeal the incorporated provisions as well—the repealing Act

Must indicate clearly that specific incorporated provisions will

Also be repealed. In terms of s 76 of the National Road Traffic

Act 93 of 1996 certain external standards incorporated by

Reference are deemed to be regulations issued under the Act:

76 Incorporation of standards by reference

(1) The Minister may by notice in the Gazette incorporate in the

Regulations any standard without stating the text thereof, by mere referenceto the number, title
and year of issue of that standard or to any particulars by

Which that standard is sufficiently identified.

(2) Any standard incorporated in the regulations under subsection (1) shall

For the purposes of this Act, in so far as it is not inconsistent with it, be

Deemed to be a regulation.

(3) A notice under subsection (1) shall come into operation on a date

Specified in the notice, but not before the expiry of 30 days after the date of

Publication of the notice.

(4) If any standard incorporated in the regulations is amended or replaced,

Such standard shall remain in force until such time that the Minister by notice
In the Gazette re-incorporate the amended or replaced standard.

[Sub-s. (4) substituted by s. 21 of Act 64 of 2008.]

...

Page 76

Sunset clauses

A sunset clause is a provision in legislation which terminates

(repeals) all or portions of the law after a specific date,

Unless further legislative action is taken to extend it. Most

Laws do not have sunset clauses; under normal

Circumstances legislation remains in force indefinitely until

Repealed at some unknown date in the future. A sunset

Clause is a date-bound repeal for the future: the legislature

Has determined a date in the future when the legislation will

Automatically lapse. In effect this means that the legislature

Has adopted and repealed the same legislation at the same

Time. This can only happen if the legislation has a very

Specific expiry date. Sunset clauses have a limited lifespan

And their continued existence is dependent on parliamentary

Action, as was illustrated by s 48(6) of the Customs and

Excise Act 91 of 1964:

Any amendment, withdrawal or insertion made [by the Minister] under this

Section in any calendar year shall, unless Parliament otherwise provides, lapse

On the last day of the next calendar year, but without detracting from the

Validity of such amendment, withdrawal or insertion before it has so lapsed.Practical example:

The Revenue Laws Amendment Act 20 of 2006

Created tax-free ‘bubbles’ around FIFA-designated

Sites so that profits on certain goods sold within

These areas would be subject neither to income tax

Nor to value-added tax. The periods for these

Exemptions began one week before the kick-off of

The Confederations Cup and the Soccer World Cup

And automatically ended immediately after the

Closing ceremonies.

Implied repeal

Where two different enactments dealing with the same

Matter clash, it is presumed (by the judiciary) that the

Relevant legislature by implication intended that the later

Enactment repeals the earlier enactment (see 4.5.2 below)

The two enactments both have to be on the same

Hierarchical level and also on the same level of generality.

The legislation is not repealed by the court, but it is assumed

That the legislature implicitly repealed the earlier legislation;

The court is merely the ‘messenger’ that breaks the deadlock.

4.4 SUSPENSION OF LEGISLATION ALREADY IN FORCE

In this paragraph Botha explains how legislation can be temporarily suspended.

Also see the example given on page 78 of the prescribed textbook.4.4 Suspension of legislation
already

In force

Legislation can also be temporarily suspended; in other

Words, it remains in force, but its operation is halted for the

Time being until some or other condition is met or

Requirement complied with.

An example of legislation temporarily halted is suspensionby a court. The system of co-operative

government is one of

The unique features of the South African constitutional

Structure. In terms of ss 40 and 41 of the Constitution this

System consists of three distinct but interrelated and

Interdependent spheres of government. Schedule 4 of the

Constitution sets out the matters in which national and

Provincial legislatures have concurrent law-making powers;

In other words, both Parliament and the provincial

Legislatures may enact legislation on Schedule 4 matters.

Where there are conflicts, the national legislation will

Sometimes prevail over the provincial legislation, but in

Other cases the provincial legislation may actually trump the

National legislation. Sections 146-150 of the Constitution

Provide for the intricate process of conflict resolution within

This system of co-operative government. Section 149 of the

Constitution provides for an interesting variation on the

Demise of legislation:

149 Status of legislation that does not prevail

A decision by a court that legislation prevails over other legislation does not

Invalidate that other legislation, but that other legislation becomes inoperative

For as long as the conflict remains.

So: when legislation X conflicts with legislation Y, the

Operation of legislation X is suspended until the relevant

Legislature deals with the conflict. Legislation X is not

Invalidated, but merely suspended for the duration of the

Legislative standoff.

Another example of suspension is the application of the

Rule cessante ratione legis, cessat et ipsa lex by the South

African courts (see 7.3.2 below for a full discussion of the

Rule). This is the case where a court will exercise its

Discretion to suspend the application of legislation because it

Has already been complied with in another way.

It goes without saying that a competent lawmaker may

Also suspend legislation for a period of time with a formal

Legislative amendment, probably containing a sunset clause.Furthermore, an administrative

agency involved with the

Application and administration of legislation may also place

Its application of legislation on hold, in the process effectively

Suspending the legislation in question.

Page 78

Practical example:

An interesting combination of legislative and

Administrative suspension occurred during 2011.

On 2 June 2011 the National Treasury published the

Draft Taxation Amendment Bills. Amongst other

Things, these draft Bills proposed the suspension of

S 45 of the Income Tax Act in order to investigate

Interest deductions from excessive debt, but on 3

June 2011 the National Treasury in any event

Decided to go ahead with a temporary suspension of

The operation of s 45 for 18 months. The proposed

Legislative suspension of s 45 of the Income Tax Act

Was never introduced and adopted, and in October

2011 the Minister of Finance lifted this

Administrative suspension. Following this, the

Taxation Laws Amendment Act 24 of 2011 inserted

S 23K into the Income Tax Act in order to deal with

Those issues which were subject to investigation

During the administrative suspension. To cover the

Conduct of the Treasury, s 23K was retroactively

Deemed to have commenced on 3 June 2011, the

Date on which the Treasury’s administrative

Suspension started.
4.5 THE PRESUMPTION THAT LEGISLATION DOES NOT INTEND TO

CHANGE THE EXISTING LAW MORE THAN IS NECESSARY

A new piece of legislation that sets out to repeal or change the existing common

Law, or sets out to repeal or change the existing legislation regulating a particular

Topic, must do so in clear terms. Where this is not done, and doubt arises whether

The new legislation has in fact repealed the existing law or merely supplemented it,

The working presumption is that the new legislation has not changed the existing

Law more than absolutely necessary (unless the contrary appears from the
Circumstances).4.5 The presumption that legislationdoes not intend to change the existing

Law more than is necessary

This presumption means that legislation should be

Interpreted in such a way that it is in accordance with

Existing law (legislation, common law and customary law)

And changes it as little as possible.

4.5.1 Common law

The 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. If this is not done, the presumption applies and the legislation must

Be interpreted in the light of the common law rules that apply to the same issue.4.5.1 Common
law

This presumption reflects an inherent respect and esteem for

Our common law heritage. Solomon J in Johannesburg

Municipality v Cohen’s Trustees 1909 TS 811 823 put it as

Follows:

It is a sound rule to construe a statute in conformity with the common law

Rather than against it, except where and so far as the statute is plainly

Intended to alter the course of the common law.

It is presumed that legislation does not alter the common

Law, but this presumption is rebutted if legislation clearly

Provides that the common law (on a particular point) is being

Altered (Gordon v Standard Merchant Bank 1983 (3) SA 68

(A)).
4.5.2 Legislation

Botha states that existing legislation is usually expressly repealed. Most new Acts

Contain a separate schedule in which all the sections and Acts that have been

Repealed are listed. The Constitution, for example, contains such a list in “Schedule

7: Laws repealed”. However, sometimes an Act does not expressly repeal or amend
Existing legislation. In such cases the working presumption is that the new Act has

Not changed the existing legislation on the topic more than is absolutely necessary.

The court must try to reconcile or combine the new and the old law. Only where

This is impossible must it be accepted that the new legislation has, by implication,

Repealed or changed the old legislation.

A good example of this presumption is provided in the case of Government of the

Republic of South Africa v Government of KwaZulu 1983 (1) SA 164 (A), which is

Discussed by Botha and must be studied carefully.

4.5.2 Legislation

With regard to legislation, the presumption means that in

Interpreting a subsequent Act it is assumed that the

Legislature did not intend to repeal or modify the earlier Act

(Kent v SA Railways and Harbours 1946 AD 405). Any repeal

Or amendment has to be indicated expressly or by necessary

Implication. An attempt should be made to read the earlier

And subsequent legislation together in an effort to reconcile

Them (Wendywood Development (Pty) Ltd v Rieger 1971 (3)

SA 28 (A)). In Shozi v Minister of Justice, Kwazulu 1992 (2)

SA 338 (NPD) 343B the court stated that

If two apparently contradictory provisions are capable of a sensible

Interpretation which would reconcile the apparent contradiction, that

Interpretation should be preferred.

If such reconciliation is impossible, it has to be presumed by

Necessary implication that the later of the two provisions

Prevails, resulting in the amendment or repeal of the earlier

One (Entabeni Hospital Ltd v Van der Linde; First National

Bank of SA v Puckriah 1994 (2) SA 422 (N)).

Case law example:

An interesting example of the repeal of an earlier

Act by necessary implication concerned the

Ingwavuma/KwaZulu land issue during the

Apartheid era. The State President proclaimed that

The Ingwavuma territory, which had belonged to the

KwaZulu homeland, would no longer be part of that

Territory. The question arose whether the State

President should have consulted the KwaZulu

Government or not. In Government of the Republic

Of South Africa v Government of KwaZulu 1983 (1)

SA 164 (A) the Appellate Division heard the appeal

Against a decision of the Supreme Court which

Invalidated the proclamation, because the South

African government had not consulted the KwaZulu

Homeland authorities. The appellants argued that

The proclamation had been promulgated correctly 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.

However, the court found that s 25(1)

Of Act 38 of 1927 conflicted with s 1(2) of the Self-

Governing Territories Constitution Act 21 of 1971,

Which provided that the territory of a homeland

Could only be altered after consultation with that

Particular homeland. As the two provisions could

Not be reconciled, it was presumed that the earlier

Provisions in the 1927 Act had, by necessary

Implication, been repealed by the later provisions of

The 1971 Act.

Obviously this rule only applies if the objects of the two

Conflicting provisions are in pari materia (essentially the

Same). Legislative repeal, by implication, will only be

Accepted by the court if the subsequent legislation manifestly

Contradicts the earlier legislation (Minister of Police v

Haunawa 1991 (2) SA 542 (Nm)). Furthermore, according to

The rule generalia specialibus non derogant, it is presumed

That a provision in a subsequent general Act does not repeal

An earlier specific provision (Sappi Fine Papers (Pty) Ltd v ICI

Canada Inc 1992 (3) SA 306 (A)).

TEST YOURSELF

(1) List and discuss the requirements which were laid down in National Coalition
For Gay and Lesbian Equality v Minister of Home Affairs before reading in or sever-

Ance could take place.

(2) Briefly outline when and how the courts can invalidate legislation.

(3) Can the repealed provisions of legislation still have an influence on the inter-

Pretation of legislation? Discuss with reference to case law.

(4) Restate the wording of section 12(2) of the Interpretation Act in your own

Words.

(5) Restate the reasoning in the judgments of the following cases in your own

Words: National Coalition for Gay and Lesbian Equality v Minister of Home Affairs;

And Government of the Republic of South Africa v Government of KwaZulu

(6) Can legislation be repealed by

(i) Disuse?

(ii) An explicit judgment of a court?

(iii) Implication?
STUDY UNIT 3

Distinguish between the adoption and the promulgation of legislation.

The adoption of legislation by the relevant legislative body refers to the

constitutionally prescribed

And other legal processes and procedures required for the draft legislation to become
law,

Including preparation of a draft Bill, introduction of the Bill in the legislature, and
public participation

(if required) as well as the committee stages, voting and assent. Once Parliament has
passed

(adopted) a Bill, the Act then has to be assented to and signed by the President. Once
assented

To and signed, such an Act (parliamentary or provincial) becomes law (ss 81 and 123
of the

Constitution).

For legislation to become operational, it needs to be promulgated. Promulgation

refers to the

Process of putting legislation officially and legally into operation (the commencement
or taking
Effect of th

What is meant by “commencement” in section 13(1) of the Interpretation Act 33 of

1957?

Legislation may come into operation at one of three times:

1. Upon publication in the Gazette

2. On a day specified in the statute itself

3. On an unspecified date to be proclaimed.

Discuss the presumption that legislation only applied to future matters. Also explain:

1. The reason behind this presumption; and

2. The influence of the Constitution on this presumption.

The values underlying the presumption that legislation deals only with future matters
have found

Their way into the Bill of Rights. Section 35(3)(l) provides that “every accused
person has the right
To a fair trial, which includes the right not to be convicted of an act or omission that
was not an

Offence under either national or international law at the time it was committed or
omitted”; and

Section 35(3)(n) provides that “every accused person has the right to a fair trial,
which includes

The right to the benefit of the least severe of the prescribed punishment if the
prescribed

Punishment for the offence has been changed between the time that the offence was
committed

And the time of sentencing”.However, legislation may expressly state that it applies
retrospectively, provided that the

Retrospective application is constitutionally justified.

In practical terms the rule that legislation only applies to the future means that
legislation should

Not have a retro-effect.

There are 2 types of retro-effect legislation:

1. Retroactivity – in this case the legislation operates as of a time prior to the

enactment, in
Other words, it operates backwards in time and changes the law from what it was;

2. Retrospectivity – in this case the legislation operates for the future only, in line
with the

Basic principle. The legislation is prospective, but could impose new results in
respect of

A past event. It operates forwards, but it “looks backwards” in that it attaches new

Consequences for the future to an event that took place before the legislation was
enacted.

Suppose there is an Estate Duty Act of 2009 which provides that estate duty should be
levied an

Paid upon the estate of every person who died after the commencement of this Act.
The Act is

Published in the Gazette on Monday 9 January 2009, but only reaches the shelves at
10:00 that

Morning. Would the Act apply to the estate of Ms X who died at 03h00 in the
morning of 9 January

2009?
CHAPTER 5
How legislation is interpreted
CONTENTS Chapter5
5.1 INTRODUCTION 29
5.2 JURISPRUDENTIAL PERSPECTIVES ON STATUTORY
INTERPRETATION 29
5.3 THEORIES OF INTERPRETATION 29
5.3.1 The orthodox text-based (literal) approach 29
5.3.2 The purposive (text-in-context) approach 32
5.3.3 The influence of the supreme Constitution 35
5.3.4 Practical inclusive method of interpretation 37
NOTE: You do not need to study section 5.2: Jurisprudential perspectives on
statutory interpretation.
What will we study in this chapter?
After having worked through this chapter you should be able to
(1) critically discuss the methodological debate between the textual and contex-
tual approaches to statutory interpretation
(2) critically explain how textualists interpret legislation by referring to examples
from case law
(3) critically explain how contextualists interpret legislation by referring to exam-
ples from case law
(4) give reasons why the contextualist approach should be adopted in post-apart-
heid South Africa
(5) name and explain the five dimensions of the practically inclusive method of
statutory interpretation
What are the central questions to be answered?
There are many ways to read and interpret legislation. The different methods or
approaches often lead to dramatically opposite results. Consider the case of Jaga v
Dönges. In this case the court had to decide what the term “sentenced to
imprisonment” meant (also recall the Winnie Madizikela-Mandela case mentioned
in chapter 1 above). Jaga received a suspended prison sentence and the question
was whether he could be deported, on the grounds that he had been “sentenced to
imprisonment”. The majority of the court adopted a textual method ofinterpretation (see further
below) and concluded that a suspended sentence is a

sentence of imprisonment, and that Jaga could be deported. The minority of the

same court adopted a contextual method of interpretation (see further below) and

concluded that a suspended sentence is not a sentence of imprisonment, and that

Jaga could not be deported. On the basis of the judgment, Jaga was ordered to

Leave South Africa permanently. The method of interpretation that was chosen by

The court determined his fate.

Given the far-reaching implications of our methodological choices, what methods

Are available and what are the differences between the textual and the contextual

Methods of statutory interpretation? Which of the two approaches to interpretation

Should we adopt and why? These questions are discussed and answered in this
Chapter.

5.1 INTRODUCTION
5.2
Botha explains the importance of the theoretical foundations of interpretation of

Statutes and that this chapter will deal with these foundations. Botha then proceeds

To argue that the new constitutional order has resulted in a move away from the

Textual towards a contextual approach (see paragraph 5.3.3 in the study guide and

Prescribed textbook). The chapter concludes with a comprehensive description of

The contextual approach as the “practical inclusive method of interpretation”.

5.3.3 The influence of the supreme Constitution
5.3.4
Although most academics in South Africa before 1994

Propagated a text-in-context (purposive) method of statutory

Interpretation that recognised the vital importance of thelegislative context, few of the courts
actually adopted a less

Formalistic approach to interpretation. However, since 27

April 1994 the (largely academic) debate about a text-based

Approach versus a text-in-context approach to statutory

Interpretation has become irrelevant. Since both the

Interim Constitution (s 35(3)) and the 1996 Constitution (s

39(2)) included an express and mandatory interpretation

Provision, statutory interpretation (like all law in South

Africa) now has to be conducted within the value-laden

Framework of the supreme Constitution which is the highest

Law of the land. Apart from the constitutional values, the

Interpretation of statutes was transformed by six provisions

Of the Constitution, in particular: s 1 (the foundational

Provision); s 2 (supremacy of the Constitution); s 7 (the

Obligation clause); s 8 (the application clause); s 36 (the

Limitation clause) and s 39 (the interpretation clause).

Constitutional supremacy

Section 1 of the Constitution is the foundational clause:

Page 100

The Republic of South Africa is one, sovereign, democratic state founded on

The following values:

Human dignity, the achievement of equality and the advancement

Of human rights and freedoms.

Non-racialism and non-sexism.

Supremacy of the constitution and the rule of law.

Universal adult suffrage, a national common voters roll, regular

Elections and a multi-party system of democratic government, to

Ensure accountability, responsiveness and openness.

Section 2 is the constitutional supremacy clause. According

To Du Plessis (1997: 812) s 1© (referring to the supremacy

Of the Constitution and the rule of law) merely anticipates

The supremacy of the Constitution; s 2 unambiguously

Confirms it:

This Constitution is the supreme law of the Republic; law or conduct

Inconsistent with it is invalid, and the obligations imposed by it must befulfilled.

Section 2 must be read with s 7 of the Constitution, which

States that the Bill of Rights is the cornerstone of the South

African democracy, and that the state must respect, protect,

Promote and fulfil the rights in the Bill of Rights, s 8(1),

Which states that the Bill of Rights applies to all law, and

Binds the legislature, the executive, the judiciary and all

Organs of state, as well as s 8(2), which provides that the Bill

Of Rights applies to both natural and juristic persons; and s

237, which states that all constitutional obligations must be

Performed diligently and without delay. If all these provisions

Are read together, one principle is indisputable: the

Constitution is supreme, and everything and everybody are

Subject to it. This means that the Constitution cannot be

Interpreted in the light of the Interpretation Act or the

Roman-Dutch common law or traditional customary law.

Everything and everybody, all law and conduct, all cultural

Traditions and legal dogmas and religious perceptions, all

Rules and procedures, and all theories, canons and maxims of

Interpretation are influenced and ultimately qualified by the

Constitution. In Holomisa v Argus Newspapers Ltd 1996 (2)

SA 588 (W) 618 Cameron J summarised this principle very

Well:
The Constitution has changed the ‘context’ of all legal thought and decision-

Making in South Africa.

The interpretation clause

Section 39(2) of the Constitution (the interpretation of

Statutes in general) provides:

Page 101

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 39(2) deals with the interpretation of legislation

Other than the Bill of Rights. The Constitution does notexpressly prescribe a contextual
(purposive) approach to

Statutory interpretation. However, s 39(2) is a peremptory

Provision, which means that all courts, tribunals or forums

Must review the aim and purpose of legislation in the light of

The Bill of Rights: plain meanings and so-called clear,

Unambiguous texts are no longer sufficient. Even before a

Particular legislative text is read, s 39(2) ‘forces’ the

Interpreter to promote the values and objects of the Bill of

Rights. This inevitably means that the interpreter is

Consulting extra-textual factors before the legislative text is

Even considered. Factors and circumstances outside the

Legislative text are immediately involved in the

Interpretation process. In short, interpretation of statutes

Starts with the Constitution and not with the legislative text!

Is this a typical academic flight of fancy? No, I am merely

Quoting the Constitutional Court: Ngcobo J said the following

In Bato Star Fishing (Pty) Ltd v Minister of Environmental

Affairs and Tourism 2004 (4) SA 490 (CC) paras 72, 80 and

90 (emphasis added):

The Constitution is . . . the starting point in interpreting any legislation. . . .

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 capable of such interpretation . . .

The emerging trend in statutory construction is to have regard to the context

In which the words occur, even where the words to be construed are clear

And unambiguous.

In Investigating Directorate: Serious Economic Offences v

Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor

Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC) para 21

Langa DP explained the constitutional foundation of this

‘new’ interpretation methodology as follows (emphasis

Added):

Section 39(2) of the Constitution . . . means that all statutes must be

Interpreted through the prism of the Bill of Rights. All law-making authority

Must be exercised in accordance with the Constitution. The Constitution is

Located in a history which involves a transition from a society based on

Division, injustice and exclusion from the democratic process to one which

Respects the dignity of all citizens, and includes all in the process ofgovernance. As such, the
process of

Page 102

Interpreting the Constitution must recognise the context in which we find

Ourselves and the Constitution’s goal of a society based on democratic

Values, social justice and fundamental human rights. This spirit of transition

And transformation characterises the constitutional enterprise as a whole.

Constitutional values

As was explained earlier, the traditional South African

Approach to statutory interpretation was characterised by a

Strict devotion to the legislative text, and by the sovereignty

Of Parliament. Now the supreme Constitution, underpinned

By universally accepted values and norms, is the

Fundamental law of the land. It is the ultimate value-laden

Yardstick against which nearly everything is viewed and

Reviewed. To quote Mokgoro J in S v Makwanyane (above)

498H-I:

With the entrenchment of the Bill of Fundamental Rights and Freedoms in a

Supreme Constitution, however, the interpretive task frequently involves

Making constitutional choices by balancing competing fundamental rights and

Freedoms. This can often only be done by reference to a system of values

Extraneous to the constitutional text itself, where these principles constitute

The historical context in which the text was adopted and which help to explain

The meaning of the text. The Constitution makes it particularly imperative for

Courts to develop the entrenched fundamental rights in terms of a cohesive

Set of values, ideal to an open and democratic society. To this end common

Values of human rights protection the world over and foreign precedent may

Be instructive.

The preamble to the Constitution refers to a society based on

Democratic values, social justice and fundamental human

Rights. What are these democratic values? They are, amongst

Others, freedom, equality and human dignity (s 7(1)), the

Achievement of equality, the advancement of human rights

And freedoms, non-racialism and non-sexism. Sections 36(1)

And 39(1) refer to an open and democratic society based on

Freedom, equality and human dignity. It appears as if these

Are the three core values on which the Constitution rests:freedom, equality and human dignity.
The spirit, purport and

Objects of the Bill of Rights have to be promoted during the

Process of statutory interpretation. In other words, the

Courts are the guardians and enforcers of the values

Underlying the Constitution. As a matter of fact, in terms of

The official oath of judicial officers (item 6(1) of Schedule 2

Of the Constitution)

Page 103

The courts have to uphold and protect the Constitution and

The human rights in it. This means that the courts will have

To make certain value judgements during the interpretation

And application of all legislation. Since the values underlying

The Constitution are not absolute, the interpretation of

Legislation is also an exercise in the balancing of conflicting

Values and rights. Consequently, the interpretation of

Statutes can no longer be a mechanical reiteration of what

Was supposedly ‘intended’ by Parliament, but is rather what

Is permitted by the Constitution.

The impact of constitutionalism

A supreme constitution is not merely another legislative

Document, but the supreme law (lex fundamentalis) of the

Land. A constitutional state (which has a supreme

Constitution) is underpinned by two foundations: a formal

One (which includes aspects such as the separation of

Powers, checks and balances on the government, and the

Principle of legality: in other words, the institutional power

Map of the country); and a material or substantive one

(which refers to a state bound by a system of fundamental

Values such as justice and equality). In S v Makwanyane

(above) para 262 the late Mahomed J referred to a supreme

Constitution in the following ringing tones (emphasis added):

All constitutions seek to articulate, with differing degrees of intensity and

Detail, the shared aspirations of a nation; the values which bind its people,

And which discipline its government and its national institutions; the basicpremises upon which
judicial, legislative and executive power is to be wielded;

The constitutional limits and the conditions upon which that power is to be

Exercised; the national ethos which defines and regulates that ethos; and the

Moral and ethical direction which that nation has identified for its future. In
Some countries, the Constitution only formalises, in a legal instrument, a

Historical consensus of values and aspirations evolved incrementally from a

Stable and unbroken past to accommodate the needs of the future. The

South African Constitution is different: it retains from the past only what is

Defensible and represents a decisive break from, and a ringing rejection of,

That part of the past which is disgracefully racist, authoritarian, insular, and

Repressive and a vigorous identification of and commitment to a democratic,

Universalistic, caring and aspirationally egalitarian ethos, expressly articulated

In the Constitution.

The preamble to the interim Constitution stated that the

Republic of South Africa is a constitutional state (regstaat),

But

Page 104

The Constitution of 1996 does not expressly refer to a

Constitutional state. Nevertheless, there are a number of

Provisions in the Constitution which imply a constitutional

State: the preamble refers to a society based on democratic

Values, social justice and fundamental human rights; s 1

States that South Africa is, amongst other things, a

Democratic state founded on the supremacy of the

Constitution and the rule of law; and s 7 entrenches the Bill

Of Rights as the cornerstone of the democracy. As the

Supreme law of the land, the Constitution not only deals with

The institutional structures of government and formal checks

On state power, but is first and foremost a value-laden

Document. It is underpinned by a number of express and

Implied values and norms. These fundamental principles are

Not only the ideals to which the South African society has

Committed itself, but they form the material (substantive)

Guidelines which must regulate all the activities of the state.

The spirit of the Bill of Rights (s 39(2)) is a reflection of

These fundamental principles. Apart from in the Constitution

Itself, these values are found in various sources: eg theprinciples of international human rights
law and foreign case

Law dealing with similar constitutions (s 39(1)), the African

Concept of ubuntu (see also 6.3.2 below) and our common-

Law heritage.

Froneman J explained the demands of the supreme

Constitution on statutory interpretation as follows in

Qozeleni v Minister of Law and Order (above) at 635 and

637:
The only material difference between that common-law approach and the

Present approach is the recognition that the previous constitutional system of

This country was the fundamental ‘mischief’ to be remedied by the application

Of the new Constitution. That Rubicon needs to be crossed not only

Intellectually, but also emotionally, before the interpretation and application of

The present Constitution is fully to come into its own right . . . For the

Constitution, and particularly chapter 3 thereof, however, to fulfil its purpose it

Needs to become, as far as possible, a living document, and its contents a

Way of thinking, for all citizens of this country. The establishment of a culture

Of constitutionality can hardly succeed if the Constitution is not applied daily in

Our courts, from the highest to the lowest.

Unfortunately, not all the courts in South Africa hold this

View, and some continue to follow a literalist approach to

Interpretation, without reference to the supreme Constitution

And its values. In Kalla v The Master 1995 (1) SA 261 (T)

269C-G the court held that the traditional rules of statutory

Page 105

Interpretation still formed part of the law of the land and that

They were not affected by the interim Constitution.

Consequently, the orthodox plain meaning rule was applied:

If the text is ambiguous, the traditional rules of

Interpretation of statutes may be applied to find the

‘intention of the legislature’. In other words, the traditional

Common-law rules of statutory interpretation trumped the

Supreme Constitution! Other courts still follow judgments

Such as this, which means that for many courts statutory

Interpretation is still a mechanical and formalistic exercise.

In Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) 32D-E the court still emphasised the
orthodox primary rule of

Interpretation is that the courts must give effect to the literal

Or grammatical meaning of the legislation, and that deviation

From this rule will be allowed only in exceptional

Circumstances. In similar vein the court in Mateis v Ngwathe

Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA) held that in

The light of the clear wording of the Act, the word ‘state’ in ss

1 and 3 of State Liability Act 20 of 1957 does not include a

Municipality. An interpretation otherwise would mean that

The court will not interpret the Act, but rather amend it. The

Court reasoned that it did not have such powers in cases

Where the constitutionality of the relevant statutory

Provision was not in dispute, or—in typical orthodox text-

Based tradition—where the meaning of the Act under

Consideration was clear.

5.3 JURISPRUDENTIAL PERSPECTIVES ON STATUTORY
5.4
INTERPRETATION

You need not study this section

5.3 THEORIES OF INTERPRETATION

Tip

Read this paragraph with paragraph 6.1 (the difference between the intention of

The legislature and the purpose of legislation); paragraph 6.4.4 (the mischief rule);

And paragraph 7.2 (the law-making function of the courts). The discussion in this

Paragraph combines (i) the history of the textual and contextual approaches in

South Africa before 1994, and (ii) the nature of the two approaches. Make sure that

You clearly separate these two issues. Make sure you understand the differences

Between the two approaches first. This is why we also refer you to the discussions

In paragraphs 6.1 and 7.2. Once you understand the theoretical differences between
The two approaches, you can turn to the history of their application and reception

In South Africa. Pay special attention to the present constitutional position.

6.1 The language dimension
6.2
6.1.1 Basic principles

(a) The initial meaning of the text

The text-based approach no longer has any place in statutory

Interpretation. Of course the reading of the text is necessary,

But, as has been pointed out, the legislation as a whole and

Its context play an equally important role in the

Interpretation process. It also has to be borne in mind that

The purpose of the legislation will still qualify the meaning of

The text. The basic language principles about the meaning of

The text may therefore be regarded as, at best, initial and

Merely tentative rules. In the final instance, it is the purpose

Of the legislation, viewed against the fundamental rights

Contained in the Constitution, which will qualify the meaning

Of the text.

The interpretation process begins with the reading of the

Legislation concerned. The ordinary meaning must be

Attached to the words (Union Government v Mack (above)).

Most readers will agree that this is a pretty standard starting

Point for reading a text. Unfortunately, what was once a

Basic principle of language was subsequently elevated to the

Primaryrule of interpretation. For example, in Volschenk v Volschenk

1946 TPD 486, it was held that the most important rule of

Interpretation was to give words their ordinary, literal

Meaning. In Sigcau v Sigcau 1941 CPD 334 the court argued

That ‘ordinary meaning’ includes the ordinary grammatical

Meaning. Furthermore, in Association of Amusement and

Novelty Machine Operators v Minister of Justice 1980 (2) SA

636 (A) the court held that ‘ordinary meaning’ means

Colloquial (everyday conversational) speech.

Remember, the principle that the ordinary meaning should

Be given to the words of the legislation is only the starting

Point of the interpretation process. It means that the

Interpreter should not attach an artificial (strained or

Unnatural) meaning to the text. However, the context of the

Legislation, including all the factors both inside and outside

The text, which could influence and qualify the initial

Meaning of the provision, has to be taken into account right

From the outset. In the case of technical legislation dealing

With a specific trade or profession, words that have a specific

Technical meaning in that field which is different from the

Ordinary colloquial meaning have to be given that specialised

Meaning (Kommissaris van Doeane en Aksyns v Mincer

Motors 1959 (1) SA 114 (A)).

(b) Every word is important

The principle that a meaning has to be assigned to every

Word derives from the rule that words are to be understood

According to their ordinary meaning. Strictly speaking, this is

A principle which applies when any text is read. Legislation

Should be interpreted in such a way that no word or sentence

Is regarded as redundant (superfluous or unnecessary). In

Keyter v Minister of Agriculture 1908 NLR 522, it was pointed

Out that the court’s function is to give effect to every word,unless it is absolutely essential to
regard it as unwritten. In

Practice, however, a court will not easily decide that words

Contained in legislation are superfluous (Commissioner for

Inland Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA 110

(A)).

Sometimes, however, it is impossible to assign a meaning

To every word in a statute, as tautological (unnecessarily

Repetitive) provisions are often added as a result of excessive

Caution (ex abundanti cautela). Overlapping and repetition

Often occur, because the drafters of legislation are

Overcautious in guarding against anything important being

Omitted. The resulting redundancy may be ignored in the

Interpretation of a clause (R v Herman 1937 AD 168). Steyn

(1981: 20) points out

Page 113

That if superfluous words help to ascertain the meaning of

Other words, they are not really unwanted and the provision

Should be read as a whole in order to obtain the meaning. In

Secretary for Inland Revenue v Somers Vine 1968 (2) SA

138 (A), the court stated clearly that the principle that a

Meaning should be assigned to every word is not absolute.

This is correct, because the purpose of the legislation should

Be the deciding factor in determining whether a word is

Superfluous or not. This principle is also related to the

Presumption that legislation does not contain futile or

Nugatory provisions (see 6.2.4 below).

© No addition or subtraction
It is a basic rule of interpretation that there may be no

Additions to or subtractions from the words used in the

Legislation. This is a default setting, based on the separation

Of powers principle. However, this is only a basic default

Principle, because in the final analysis, the purpose of the legislation is the qualifier of the
meaning of the text.

Unfortunately, the courts have elevated this principle to

Another so-called ‘primary rule’. For all practical purposes, it

Is sufficient to know that the courts may not supply

Omissions in legislation at will. If, however, the purpose of

The legislation is clear, the court is the last link in the

Legislative process, and should (according to Labuschagne

(1985: 60)) ensure that the legislative process reaches a

Just and meaningful conclusion. (This aspect of interpretation

Will be discussed in greater detail in Chapter 7 below.)

(c) The continuing time-frame of legislation: the law

Is always speaking

If words bear their ordinary meaning—initially at least—the

Question is whether words in existing legislation should

Interpreted according to their present-day meaning, or

Whether they should retain the meaning they had when the

Legislation was passed. Cowen (1980: 391) questioned the

Principle that words should retain their original meaning: it

Indicates a tendency to glance over one’s shoulder, based on

An incorrect reconstruction of an historical legislature’s

Thoughts (the original intent principle), and negates the

Future-oriented frame of reference of legislation.

Initially the courts followed the general rule. In Finbro

Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985

(5) SA 773 (A), the Appellate Division held that unless later

Legislation expressly provided otherwise, words in legislation

Page 114

Had to be construed according to their meaning on the day

On which the legislation was adopted. This judgment was

Confirmed in Minister of Water Affairs and Forestry v

Swissborough Diamond Mines (Pty) Ltd 1999 (2) SA 345 (T):

The intention of the legislature had to be determined in view of the meaning of the provision at
the time when it was

Enacted.

However, it would seem that the courts might in future be

Less rigid. In Golden China TV Game Centre v Nintendo Co

Ltd 1997 (1) SA 405 (A) it was held that the general scheme

(purpose) of an Act suggested that the definitions in that Act

Were to be interpreted flexibly in order to deal with new

Technologies on a continuous basis, rather than to interpret

The provisions narrowly, forcing the legislature periodically to

Update the Act. In Fourie v Minister of Home Affairs 2005 (3)

SA 429 (SCA) paras 136-137 Farlam JA (albeit in a minority

Judgment) refers to a presumption of updating

Interpretation: an updated interpretation should be given to

‘ongoing Acts’ (legislation that will continue to apply in the

Future), except in the case of those rare statutes intended to

Be of unchanging effect (so-called ‘fixed-time Acts’).

When considering this continuing time-frame of legislation

It must be borne in mind that all legislation has to be

Interpreted so as to promote the spirit and scope of the Bill

Of Rights, but that a supreme constitution is not a static

Document, nor are the values underpinning it static. In

Nyamakazi v President of Bophuthatswana 1992 (4) SA 540

(BGD) 567H Friedman J stated that a supreme constitution

Must be interpreted in the context and setting existing at the

Time when a case is heard, and not when the legislation was

Passed, otherwise the growth of society will not be taken into

Account:

These are the objectives of the rights contained therein, the circumstances

Operating at the time when the interpretation has to be determined, the

Future implications of the construction, the impact of the said construction on

Future generations, the taking into account of new developments and changes
In society.

In Baloro v University of Bophuthatswana 1995 (4) SA 197

(B) 241B Friedman J once again explained this constitutional

Dynamic (emphasis added):

This Constitution has a dynamic tension because its aims and purport are tometamorphose South
African society in accordance with the aims and objects

Of the Constitution. In this regard it cannot be viewed as an inert and

Stagnant

Page 115

Document. It has its own inner dynamism, and the Courts are charged with

Effecting and generating changes.

However, an enactment cannot automatically be

Reinterpreted to keep up with the winds of change in society.

The rule of law principle means that courts will always need
To balance the dimension of futurity with legality issues such

As offences, penalties and vested rights, as well with legal

6.4.4 The mischief rule

The historical context of the particular legislation is used to

Place the provision in question in its proper perspective. This

Historical context is also known as the mischief rule. The

Mischief rule was laid down in the 16th century by Lord Coke

In the famous Heydon’s Case (1584) 3 Co Rep 7a (76 ER

637) and forms one of the cornerstones of a text-in-context

Approach to interpretation. It poses four questions that will

Help to establish the meaning of legislation:

What was the existing law (the legal position) before

The legislation in question was adopted?

Which problem (mischief or defect) was not adequately

Addressed by the existing law before the new legislation was

Adopted?

What remedy (solution) is proposed by the new

Legislation to solve this problem?

What is the true reason for the proposed remedy?

The aim of the rule is to examine the circumstances that lead

To the adoption of the legislation in question. The mischief

Rule has been applied on numerous occasions by the courts.

For example, as a result of the incomprehensible language

Used in the Compulsory Motor Vehicle Insurance Act 56 of

1972, the court in Santam Insurance Ltd v Taylor (above)

Examined the historical background of the Act in order to

Ascertain its purpose.

7.1 What is concretisation?
According to Du Plessis (1986: 149) concretisation is the

Final stage in the interpretation process. The legislation is

Realised (becomes a reality). During concretisation the

Legislative text and purpose, as well as the facts of a

Particular situation are brought together to reach a

Conclusion. Synonyms for concretisation are correlation,

Harmonisation, and actualisation.

Concretisation is the process through which the interpreter

Moves from the abstract to the practical reality to apply the

Particular legislation. After the text has been studied and all

The presumptions, aids and principles to contextualise and to

Determine the aim and purpose of the legislation employed,

The result is applied to the facts of the case to reach the

Correct solution. All the loose threads are gathered together

To finalise the process. The concretisation phase always takes

Place, irrespective of the approach to interpretation

Employed by the interpreter. However, the text-in-context

Supporters argue that contextualisation provides more data

To the interpreter with which to exercise a better discretion

During the interpretation and application of the legislation. In

Other words, the interpreter is better equipped to concretise

Accurately. Two commentators provide more insight into the

Process of concretisation:

Du Toit (1977: 11) points out that the essence of

Successful interpretation lies in the current realisation of thepossible meanings of the original
legislation. The meaning of

The text is tantamount to its application in a given concrete

Situation.
Page 160

Lategan (1980: 107) defines interpretation as the

Concretisation of the meaning of a text in a concrete, present

Situation during the last stage of the interpretation process.

Such a process is not simply the application of the provisions

Of the legislation, but rather the process of transition from

Interpretation to application.

During concretisation the abstract text of the legislation

And the purpose of the legislation (which was determined

Earlier in the process) are correlated with the concrete facts

Of the case within the framework of the prescribed

Constitutional principles and guidelines.

5.3.1 The orthodox text-based (literal) approach

Botha starts by listing the various rules of interpretation that apply under the
Textual approach. The primary rule of textual interpretation states that if the

Ordinary or plain meaning of the words in a legislative provision is clear, that

Meaning must be applied. Because ordinary citizens may rely on the everyday
Meaning of legislation, the courts may not proceed beyond the plain meaning of

The text. Interpretive questions must first, and as far as possible, be settled by the

Dictionary.

The golden rule of textual interpretation states that only if the wording of the

Legislative provision is ambiguous (there is more than one dictionary meaning of

The words in question), or if the ordinary meaning leads to such obviously absurd

Results that no legislature could have intended that the ordinary meaning should be

Applied in the circumstances, can the court deviate from the ordinary meaning of

The words in the legislation. What should a court do where it cannot simply apply

The plain meaning of the words?

In these circumstances, the court may turn to a number of secondary aids. These
Aids are found both in other parts of the legislative text beyond the wording of the

Specific section in question (the so-called internal aids) and outside the legislative

Text as a whole (so-called external aids). The internal aids are further discussed in

Paragraph 6.1.2 and the external aids in paragraph 6.1.3. Only when it is not clear

From the wording of the legislative provision itself what the legislature intended,

Should the court look at the internal aids contained in the rest of the legislation (the

Title, long title, preamble, chapter headings, etc) to determine what the intention of

The legislature was. Only where the legislation as a whole still does not provide an

Answer can the court consult the external aids (commission reports, parliamentary

Debates, memoranda).

Only in cases where the language (the primary indicator of legislative meaning) is

Unclear or absurd, and the internal and external aids (the secondary indicators of

Legislative meaning) cannot resolve the uncertainty or absurdity, then the court can
Turn to a set of common law presumptions (the tertiary aids or indicators of

Legislative meaning) in order to resolve the uncertainty. In these cases, the court in

Effect concedes that it cannot determine what the legislature actually intended, and

That it will therefore make an assumption about what the legislature intended.

In order to deepen your understanding of the textual approach as it applied in

South Africa in the last years of the apartheid era, complete the following activity.

Remember, your first aim is to understand WHAT textualists do when they

Interpret legislation.
6.1.3 External language aids to interpretation
(a) Dictionaries and linguistic evidence
In an era in which legislation is becoming ever more
technical and highly specialised, courts often use dictionaries
during interpretation. In Transvaal Consolidated Land and
Exploration Co Ltd v Johannesburg City Council 1972 (1) SA
88 (W) 94G the court used dictionaries in a contextual
framework:
Dictionary definitions serve to mark out the scope of the meanings available
for a word, but the task remains of ascertaining the particular meaning and
sense of the language intended in the context of the statute under
consideration.
 In De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka
1980 (2) SA 191 (T) the court reiterated that the meaning of
a word cannot be determined conclusively by its dictionary
meaning. The dictionary meaning is only a guideline. A
dictionary cannot prescribe which of several possible
meanings of a particular word should prevail—the context in
which a word is used should be the decisive factor. In
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1)
SA 710 (A) the court reiterated that the use of authoritative
dictionaries is a permissible and helpful method available to
the courts during interpretation of statutes. However,
interpretation of statutes cannot be done by ‘excessive
peering at the language to be interpreted without sufficient
attention to the contextual scene’. After all, the interpreter
has to ascertain the meaning of words or expressions in the
particular context of the statute in which it appears.
Case law example:
In S v Makhubela 1981 (4) SA 210 (B), 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 having a driver’s licence.

He was found guilty of driving a vehicle on a public

Road without a valid driver’s licence. On review, the

Court decided that the definition of the word ‘drive’,

As found in the Road Traffic Act 7 of 1973, was

Inadequate, and it consulted a dictionary as well.

The court held that the word ‘drive’ should not be

Construed only according to its dictionary meaning,

But should be

Page 124

Understood within the context of the Act as a whole.

The legislature had meant that a person driving a

Vehicle driven by its own mechanical power should

Be in possession of a driver’s licence. The conviction

And sentence were set aside.

In Association of Amusement and Novelty Machine Operators

V Minister of Justice (above) the meaning of the word ‘pin-

Tables’ was in dispute. The court held that the testimony of

Language experts was not admissible as an aid in construing

Legislation. In the same vein, in Metro Transport (Pty) Ltd v

National Transport Commission 1981 (3) SA 114 (W) the

Court decided that supplementary linguistic evidence to

Interpret a statutory provision was not admissible.

(b) Examples and footnotes

The use of footnotes in legislation is a new trend, used to

Facilitate better and more streamlined cross-references (egthe Labour Relations Act). Although
the Acts in which

Footnotes are used expressly state that they do not form part

Of the Act, they may be used as external aids during the

Interpretation process.

© Definitions in the Constitution and the

Interpretation Act

There is a large number of definitions in other legislation

That expressly have a wider application. For instance, when

Interpreting old order legislation the definitions in item 3

Schedule 6 of the Constitution will be indispensable.

Furthermore, the definitions in s 2 of the Interpretation Act

Will apply to all other legislation unless expressly provided

Otherwise.

(c) The clock is ticking: computation of time

Lawyers and courts like ‘clear lines to be drawn in the sand’.

One of those ‘lines in the sand’ is time limits. Legal

Documents must be filed within a certain time; a debt has to

Be settled or a fine must be paid before a certain date, and

So on. The matter of the computation of time is very

Important, because a large number of statutory enactments

And contractual provisions prescribe a time or period in

Which or after which certain actions are to begin, or be

Executed, abandoned or completed. The failure to discharge

Obligations within a prescribed period may have dire

Consequences. How do we construe time clauses? What is a

Month, or a week? So, when does the ‘legal

Page 125

Clock’ start ticking and when does it stop? Although s 4 of the

Interpretation Act deals with computation of time, it is more

Complicated than that. There are also common-law methods

Of computation of time, as well as time clauses in other

Legislation (eg the Rules of the High Court and theMagistrate’s Court).
The meaning of time units

Year:

A year consists of a cycle of 365 days (366 days every fourth

Or leap year), and is based on the Gregorian calendar. Every

Year commences on 1 January and ends on 31 December.

Month:

The term ‘month’ could have three possible meanings:

According to s 2 of the Interpretation Act ‘month’

Means a calendar month (not a lunar month); in other

Words, the twelve unequal named periods which make up a

Year on the calendar (s 1 of the Value-Added Tax Act 89 of

1991 defines a month as ‘any of the twelve portions into

Which a calendar year is divided’); or

A lunar month of 28 days; or

A period of time stretching between two corresponding

Dates in succeeding months of the year (eg 9 June to 9 July).

The last meaning is the one used the most frequently in law.

However, it would be more appropriate to use the term

‘calendar month’ for the first alternative and ‘month’ for the

Last one.

Day:

Normally a day will be one of the 24-hour units of a week

Stretching from midnight to midnight, or it could be the

Hours of daylight (s 1 of the Criminal Procedure Act 51 of

1977 defines a day as the space of time between sunrise and

Sunset).

Week:
Traditionally a week as a part of a calendar runs from

Midnight on a Saturday to midnight on the next Saturday.

For the purpose of computation of time the courts regard aweek as any period of seven
successive days.

Page 126

Computation of time

The statutory method (s 4 of the Interpretation Act):

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 of the

First day and exclusively also of every such Sunday or public holiday.

Section 4 refers to days and not to periods of months or

Years. So the default method of calculation for days (and

Weeks as units of days) is the statutory method. The first day

Is excluded (the counting starts on the next day) and the last

Day is included, unless the last day falls on a Sunday or a

Public holiday, in which case the period will move on to the

Next day. Please note that Sundays and public holidays

Falling within the time period will be counted. Section 1 of

The Interpretation Act provides that s 4 will apply unless the

Contrary intention is clear from the particular legislation

(Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544

(A)).

In two instances the general principle of ‘first day

Excluded, last day included’ for days will not apply (only if

The intention to deviate from the default principle is clear):

First, the rules of court provide that where a number of ‘court

Days’ are referred to in a contract or legislation, the

Computation will not include Saturdays, Sundays and public

Holidays, nor can the period end on those days; and second,

Where there is a reference to a number of ‘clear days’ or ‘at

Least’ a number of days between two events, those days will

Be calculated with the exclusion of both the first and the last

Days (eg if it is a statutory requirement that notice of eight

Clear days be given for a meeting, both the day the notice is

Delivered and the day of the meeting are not counted as part of the eight days).

Off course, legislation may at any time change the default

Time calculation methods. For instance, the Income Tax Act:

Both s 83(23) (referring to Part III of the Act dealing with

Objections and appeals) and s 89sex(1) expressly provide

That a Saturday will also not be counted during the

Calculation of prescribed time periods:

(23) Any reference in this Part and the rules to “day” means any day

Other than a Saturday, Sunday or public holiday: Provided that the days

Between 16 December of a year and 15 January of the

Page 127

Following year, both inclusive, shall not be taken into account in determining

Days or the period allowed for complying with any provision in this Part or the

Rules.

89sex. Determination of day and time for payment of tax, interest or

Penalties.

(1) Where any day specified for any payment to be made under the

Provisions of this Act, or the last day of any period within which payment
Under any provision of this Act shall be made, falls on a Saturday, Sunday or a

Public holiday, such payment shall be made not later than the last business

Day falling prior to such Saturday, Sunday or public holiday.

Common-law methods

Three common-law methods of computation of time will be

Discussed briefly. Although part of common law, these

Methods complement s 4 of the Interpretation Act (the

Statutory method):

Ordinary civil method (computatio civilis): Unless

Clearly indicated otherwise, this method is the default

Method for the calculation of months and years and is the

Opposite of the statutory method (used for days). The first

Day of the prescribed 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 of the previous

Day).
Case law examples:

A very interesting example of the ordinary civil

Method is Minister van Polisie v De Beer 1970 (2)

SA 712 (T). The case dealt with a claim for damages

After a police vehicle had collided with a private

Motor-car. In terms of s 32 of the Police Act 7 of

1958, a claim for damages against the police as a

Result of an action executed in terms of the Police

Act had to be instituted within six months. The

Collision took place on 5 August 1967. The

Summons was served on 5 February 1968. On

Appeal the Supreme Court found that the ordinary

Civil method should be used to calculate the time.

The last day was therefore excluded and the

Summons was therefore served one day too late. As

A result the action was refused.

Page 128

However, in Pivot Point SA (Pty) Ltd v Registrar of

Companies 1980 (4) SA 74 (T) the issue was the

Time period prescribed in s 45 of the Companies Act

61 of 1973, which provided that the Registrar may

‘within one month after the date of such decision or

Order, apply to the Court for relief’. The court held

That the language of the Act clearly indicated that

The ordinary civil method of calculating time was

Not to be used, because the provision stated ‘after

The date of such decision’. If time is to run ‘after’ a

Day or date, then clearly that day or date must be

Excluded from the reckoning of time.•

Natural method (computatio naturalis): Where this

Method is used, the prescribed period is calculated from the

Hour (or even minute) of an occurrence to the corresponding

Hour or minute on the last day of the period in question.

Extraordinary civil method (computatio extraordinaria):

Both the first and the last day of the period concerned are

Included. This method of time calculation is obsolete and is

No longer used by the courts.

ACTIVITY 5.1
(The textual approach)

You work as a judge’s clerk and are confronted with the following set of 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 54 of 1971. 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 79 kilometres, but by-

Passed 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 kilometres 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.

The judge has asked you to help him prepare a judgment. What should the court decide

Here? How should the phrase “an alternative road” be interpreted? Perhaps it would help to

Use a dictionary to look up what the words “road” and “alternative” mean? The judge has

Asked you to do so. Write down the ordinary language meanings of “road” and “alternative”.

Are you any closer to resolving the legal dispute?

FEEDBACK

The case in question is Public Carriers Association v Toll Road Concessionaries Pty (Ltd)

1990 (1) SA 925 (AD). Botha refers to this case as a recent example of the textual approach.

It is indeed one of the last authoritative statements of the textual approach by the (then)

Appellate Division before the introduction of the new constitutional order. However, what

Botha does not mention is that the judgment also suggested that the purpose of the
Legislation could solve interpretation problems as a last resort when the textual approach

Could not (i.e. when the language, the secondary aids and the common law presumptions

Could not resolve the uncertainty or absurdity). 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. Nevertheless, it also serves as a good example of the

Textual approach.

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 did not provide any solution to the problem. What next?
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. At the time

This was a controversial step to take. The court therefore made the statement quoted in the

Textbook in paragraph 5.3.1 in order to justify its approach. However, the court then

Continued as follows: “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
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 tollgates.
It followed that the declaration of the relevant portion of the N3 as a toll road was valid.

It turns out that the attempt to resolve the interpretation problem by appealing to

The dictionary was not very successful. Critics of the textual approach argue that

This will be so in most cases, because most words are open to different meanings in

Different contexts. This point is also made by Botha in paragraph 5.3.1. Botha

Continues to list and discuss a large number of other points of criticism against the

Textual approach (these include the basic philosophical assumptions about the role

Of the legislature (parliamentary sovereignty), the role of the court (legal positivism),

And the nature of language (essentialism)) that originally gave rise to the textual

Approach. You must study these points in detail. Your aim is to establish WHY we

Should no longer follow the textual approach, in spite of its long and established

History. To develop a clear understanding of this debate, complete the following

Activity
5.3.1 The orthodox text-based approach
In terms of this approach the interpreter should concentrate

Primarily on the literal meaning of the provision to be

Interpreted, and the interpretation process should proceed

Along the following lines:

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

(Principal Immigration Officer v Hawabu 1936 AD 26).

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 (Venter v R 1907 TS 910

914). This is also known as the ‘golden rule’ of

Interpretation. Then the court will turn to the so-called

‘secondary aids’ to interpretation to find the intention of the

Legislature (eg the long title of the statute, headings of

Chapters and sections, the text in the other official language,

Etc).

Only when these ‘secondary aids’ to interpretation

Prove insufficient to ascertain the intention, will the courts

Have recourse to the so-called ‘tertiary aids’ to construction

(ie the common-law presumptions).

This approach was popular in legal systems

Influenced by

Page 92

English law. Generally speaking, four factors led to the

Adoption of the textual approach in England:

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 recorded in thetext of the particular legislation. In
other words, the will of

The legislature Is to be found in the words of the legislation.

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 consequently 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 and to find the

Intention of the legislature, and should not be a speculation

About what the law ought to be. A strict distinction is made

Between ‘black-letter law’ and morality, because value

Judgements by the courts would lead to the justiciability of

Policy issues.

England has a common-law tradition, in which the

Courts have traditionally played a very creative role in regard

To common-law principles. Legislation was viewed as the

Exception to the rule, altering the traditional common law as

Little as possible.

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.

This text-based approach was introduced into the South

African legal system in a roundabout way from English law.

In De Villiers v Cape Divisional Council 1875 Buch 50, Chief

Justice De Villiers decided that legislation that had been

Adopted after the British had taken over the Cape should be

Interpreted in accordance with the English rules of statutory

Interpretation. This was a strange decision: in terms of

English law, a conquered territory continued to apply its own

Legal system (in this case, Roman-Dutch law). 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 law rulesof interpretation started to play an
increasingly important

Role.
Page 93

The text-based methodology is based on the

‘predominance of the word’, and the intention of the

Legislature is demoted to the status of the literal meaning of

The text. Over the years the courts came to regard the clear,

Literal meaning as identical to what the legislature intended.

In cases such as Union Government v Mack 1917 AD 731 and

Farrar’s Estate v CIR 1926 TPD 501 it was held that the

Intention of the legislature should be deduced from the words

Used in the legislation; in other words, the plain meaning of

The text in an intentional disguise. As a result, only lip-

Service was paid to the principle of legislative intent, because

The 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 (eg Ensor v Rensco Motors

(Pty) Ltd 1981 (1) SA 815 (A)).

Case law examples:

The following dictum of Stratford JA in Bhyat v

Commissioner for Immigration 1932 AD 125 129 is

Probably the classic formulation of the orthodox

Text-based method of interpretation employed by

South African courts:

The cardinal rule of construction of a statute is to endeavour to

Arrive at the intention of the lawgiver from the language

Employed in the enactment . . . in construing a provision of an

Act of Parliament the plain meaning of its language must be

Adopted unless it leads to some absurdity, inconsistency,

Hardship or anomaly which from a consideration of the

Enactment as a whole a court of law is satisfied the Legislaturecould not have intended.

The Appellate Division in Swanepoel v

Johannesburg City Council 1994 (3) SA 789 (A)

794B again referred with approval to the orthodox

‘plain meaning’ approach to statutory

Interpretation:

[T]he rules of statutory [exegesis] are intended as aids in

Resolving any doubts as to the Legislature’s true intention.

Where this intention is proclaimed in clear terms either expressly

Or by necessary implication the assistance of these rules need

Not be sought.

Page 94

More recently in Commissioner, SARS v Executor,

Frith’s Estate 2001 (2) SA 261 (SCA) 273 the

Supreme Court of Appeal reiterated the well-known

Traditional rule of interpretation:

The primary rule in construction of a statutory provision is (as is

Well established) to ascertain the intention of the legislator and

(as is equally well established) one seeks to achieve this, in the

First instance, by giving the words 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.

These three judgments have two things in common: all three

Emanate from the Appellate Division/Supreme Court of

Appeal, and all three were based on a formalistic and text-

Based view of statutory interpretation. The foundations of a

Text-based (literal) method of interpretation are many: legal

Positivism (the essence of law is in the decree, and law and

Morality should be separated), sovereignty of Parliament

(the will of Parliament is expressed in the legislation), as wellas certain formalistic ideas about
law, language and

Understanding. Bhyat is understandable: it was decided

During the era of sovereignty of Parliament, sixty-odd years

Before the commencement of a new constitutional order

Under a supreme and justiciable constitution. Perhaps we can

Condone Swanepoel as well, since judgment was given on 27

May 1994, exactly one month after the interim Constitution

Took effect. However, Frith’s Estate was decided four years

After the 1996 Constitution took effect, or roughly seven

Years into the new constitutional era: after Qozeleni v

Minister of Law and Order 1994 (3) SA 625 € and Matiso v

Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592

(SE) and S v Makwanyane (above) and a host of other

Influential decisions by the High Courts and the

Constitutional Court.

Criticism of the text-based (literal) approach to statutory

Interpretation may be summarised as follows:

In the first instance, the normative role of the

Common-law presumptions during the interpretation process

Is reduced to a mere ‘last resort’, to be applied only if the

Legislative text is ambiguous.

Another point of criticism of this narrow approach is

That words (their literal meaning) are regarded as the

Primary

Page 95

Index to legislative meaning. According to the court in

R v Hildick-Smith 1924 TPD 68 81—

There is only one kind of interpretation with one definite object, and that

Is to ascertain the true intention of the legislature as expressed in the

Act.

Other important internal and external aids to

Interpretation, which could be applied to establish the

Meaning of text-in-context, are ignored. The context of the

Legislation is only used if the text is not clear. Unless thetextual meaning is ambiguous or
unclear, the interpreter will
Not have recourse to the wide range of aids to interpretation

At his disposal.

As a result, the ‘intention of the legislature’ is

Ultimately dependent on how clear the language used in the

Legislation may be to the particular court!

Very few texts are so clear that only one final

Interpretation is possible. The mere fact that a discipline such

As interpretation of statutes exists would, by implication,

Suggest that legislation is seldom clear and unambiguous.

The text-based approach leaves very little room for

Judicial law-making, and the courts are seen as mere

Mechanical interpreters of the law (the so-called ‘his master’s

Voice’ role). This view creates the impression that once the
Legislature has spoken, the courts cease to have any law-

Making function. According to the text-based approach, 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, except in very

Exceptional cases, where the courts deviate from ‘the literal

Meaning’ of the legislation to apply some sort of corrective

Interpretation. Generally speaking, it is the function of the

Legislature to correct omissions and bad drafting in

Legislation. The well-known maxims (iudicis est ius dicere sed

Non dare and the casus omissus rule) form the basis of the
General principle that no addition to or subtraction from the

Legislative text is possible. According to the maxim iudicis est

Ius dicere sed non dare it is the function of the court to

Interpret and not to make the law (Harris v Law Society of

The Cape of Good Hope 1917 CPD 449). A rigid obsession

With this rule is the result of a misunderstanding of the

Separation of powers doctrine, with the result that this principle was conveniently used to

Justify the text-based approach to statutory

Interpretation. The casus omissus rule (courts may not

Supply omissions in legislation) is also derived from the

Principle that the function of the courts is to interpret

Law and not to make it (Ex Parte Slater, Walker

Securities (SA) Ltd 1974 (4) SA 657 (W)).

Case law examples:

Within the confines of sovereignty of Parliament

Prior to 1994, which resulted in a blinkered ‘his

Master’s voice’ role of the judiciary, the application

Of an orthodox text-based approach had another,

Darker side. In the absence of a justiciable bill of

Rights under apartheid rule, the clear, plain meaning

Of obnoxious legislation not only became the

Justification for executive-minded decisions by the

Courts, but was also used as a convenient excuse

For avoiding inconvenient moral dilemmas, as two

(in)famous cases dealing with the Group Areas Act

36 of 1966 illustrate.

The following remark of King J in S v Adams

1979 (4) SA 793 (T) 801 illustrates the moral

Dilemma of a judge trapped in the ‘black-letter’

Confines of parliamentary sovereignty, and

Confronted by the harsh effects of the letter of the

Law:

An Act of Parliament creates law but not necessarily equity. As a

Judge in a Court of law I am obliged to give effect to the

Provisions of an Act of Parliament. Speaking for myself and if I

Were sitting as a court of equity, I would have come to the

Assistance of the appellant. Unfortunately, and on an

Intellectually honest approach, I am compelled to conclude that the appeal must fail.

On the other hand, Holmes JA in Minister of the

Interior v Lockhat 1961 (2) SA 587 (A) 602 clearly

Did not experience the same ethical soul-searching

In deciding whether to follow the ‘plain meaning’ of

The legislation (emphasis added):

Page 97

The Group Areas Act represents a colossal social

Experiment and a long term policy. It necessarily

Involves the movement out of Group Areas of

Numbers of people throughout the country.

Parliament must have envisaged that compulsory

Population shifts of persons occupying certain areas

Would inevitably cause disruption and, within the

Foreseeable future, substantial inequalities.

Whether all this will ultimately prove to be for the

Common weal of all the inhabitants, is not for the

Court to decide . . . the question before this Court is

The purely legal one whether this piece of legislation

Impliedly authorises, towards the attainment of its

Goal, the more immediate and foreseeable

Discriminatory results complained of in this case. In

My view . . . it manifestly does.

This text-based approach was the predominant approach to

Interpretation in South Africa prior to 1994, and regrettably

Many of the courts still follow the traditional plain meaning

Approach. In Public Carriers Association v Toll Road

Concessionaries (Pty) Ltd 1990 (1) SA 925 (A) 934J 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.

6.1.2 Internal language aids to interpretation

(a) The legislative text in another official language

Prior to the commencement of the interim Constitution,

Legislation in South Africa was drafted in two official

Languages, and the text in the other language was used to

Clarify obscurities. Devenish (1992: 144) refers to this as

‘statutory bilingualism’.

Original legislation

The signing of legislation is part of the prescribed procedure

During the passing of original legislation. Old order legislative

Texts were signed alternately (in turn) in the languages in

Which they were drafted, and the signed text was enrolled for
Record at the Appellate Division. In case of an irreconcilable

Conflict between the various legislative texts, the signed one

Prevailed. This principle was expressly included in the 1961

And 1983 Constitutions, as well as in the interim

Constitution. The 1996 Constitution does not refer to

Irreconcilable conflicts between texts of other legislation. In

Du Plessis v De Klerk (above) para 44 the Constitutional

Court referred, with apparent approval, to the existing legal

Position regarding conflicting versions of the same legislative

Text. In terms of item 27 of Schedule 6, these provisions do

Not affect the safekeeping of legislation passed before the

1996 Constitution came into operation. It should also be

Noted that s 126 of the Constitution (‘Publication of

Municipal by-laws’) does not mention the signing of new

Municipal legislation.

With regard to the 1996 Constitution itself, s 240 of the

Constitution states that the English text will prevail in the

Event of any inconsistency between the different texts. The

Constitution also provides (ss 82 and 124) that the versions

Of all new national and provincial legislation which have been

Signed by the President or a provincial premier respectively,

Has to be entrusted to the Constitutional Court for

Safekeeping. The signed version will be conclusive evidence

Of the provisions of that legislation.

Page 116

The signed version of the legislative text does not carry

More weight simply because that is the one which was

Signed:

The signed version is conclusive only when there is an

Irreconcilable conflict between the versions (Handel v R 1933

SWA 37). In other words, the signed version is used as a last

Resort to avoid a stalemate.

If the one version of the text is wider than the other

(eg one version prescribes a penalty of imprisonment and a

Fine, and the other only a fine), then the common-

Denominator rule is followed, and only a fine will be imposed.

The texts are read together to establish the common

Denominator (Jaffer v Parow Village Management Board 1920

CPD 267).

If the versions differ but there is no conflict, the

Versions complement one another and they have to be read

Together. An attempt should be made to reconcile the textswith reference to the context and the
purpose of the

Legislation (Zulu v Van Rensburg 1996 (4) SA 1236 (LC)).

Even the unsigned version of the legislative text may

Be used to determine the intention of the legislature

(Commissioner of Inland Revenue v Witwatersrand

Association of Racing Clubs 1960 (3) SA 291 (A) 302A–B).

Because statutes are signed using alternate languages,

Amendment Acts may create a problem. Suppose the

Afrikaans version of a statute was signed but the English

Version of the amendment Act was signed. Which one of the

Signed versions of the amendment Act will prevail in case of

An irreconcilable conflict? There are conflicting answers to

This question, but the most acceptable solution was put

Forward in R v Silinga 1957 (3) SA 354 (A). The court

Suggested that the amendment Act be regarded as part of

The original statute. The version of the statute signed

Originally will prevail in the case of an irreconcilable conflict.

Subordinate legislation

There are no statutory or constitutional rules about

Conflicting language versions of subordinate legislation. In

Practice all the versions of subordinate legislation will be

Signed, and the signed text cannot be relied on to resolve

Conflicts between texts. If the texts do differ, they must be

Read together (Du Plessis v Southern Zululand Rural

Licensing Board 1964 (4) SA 168 (D)). If there is an

Irreconcilable conflict between the various texts, the court

Will give preference to the one that benefits the person

Concerned (Bolnik v Chairman of the Board appointed by the

SA Council of Architects 1982 (2) SA 397 ©).

Page 117

This approach is based on the presumption that the

Legislature does not intend legislation that is futile or

Nugatory (R v Shoolman 1937 CPD 183). If the irreconcilableconflict leads to subordinate

legislation that is vague and
Unclear, the court may declare it invalid (Kock v Scottburgh

Town Council 1957 (1) SA 213 (D)).Of course, the rules explained above will apply to old order

Legislation. If the existing Act was published in, say,

Afrikaans and English, all future amendment Acts will still

Have to be adopted and published in Afrikaans and English

(because those amendments will eventually be incorporatedinto the Act). Furthermore, in theory
at least, subordinate

Legislation issued in terms of an enabling Act originally

Published in Afrikaans and English will also need to be in

Afrikaans and English.

However, South Africa now has 11 official languages. For a

Number of practical reasons the legislation cannot be

Promulgated in all 11 languages. Since 1998 new Acts of

Parliament have been promulgated only in English. Section

59(1)(a) of the Constitution obliges Parliament to ‘facilitate

Public involvement in the legislative and other processes’.

One way of doing that is to publish translations of Bills

Introduced in

Page 118

Parliament. In addition, the Joint Rules of Parliament require

That a translated version of a Bill that has been adopted must

Be submitted together with the Bill to be signed into law. In

Practical terms this means that new Acts of Parliament are

Promulgated only in English.

(b) The preamble

Although old order legislation with a preamble is rare, some

Private Acts, the new generation public Acts (eg the South

African Schools Act 84 of 1996) and the Constitution have

Preambles. The preamble usually contains a programme of

Action or a declaration of intent with regard to the broad

Principles contained in the particular statute. Preambles tend

To be programmatic and couched in general terms, but they

May be used during interpretation of legislation since the

Text as a whole should be read in its context. Although a

Preamble on its own can never provide the final meaning of

The legislative text, post-1994 preambles should provide the

Interpreter with a starting point—it is the key that unlocks

The first door in the process of statutory interpretation.In Jaga v Dönges (above) Schreiner JA
considered the

Preamble to be part of the context of the statute. In a

Number of recent cases (eg Qozeleni v Minister of Law and

Order (above) 79D-E and Khala v The Minister of Safety and

Security 1994 (4) SA 218 (W) 221) the courts acknowledged

The unqualified application of the Constitution’s preamble. In

National Director of Public Prosecutions v Seevnarayan 2003

(2) SA 178 © 194 the court rejected the argument that a

Preamble may be considered only if the text of the legislation

Is not clear and ambiguous as an outdated approach to

Interpretation.
© The long title

The long title provides a short description of the subject

Matter of the legislation (see also the example of an Act in

Chapter 2). It forms part of the statute considered by the

Legislature during the legislative process. The role played by

The long title in helping to ascertain the purpose of the

Legislation will in each case depend on the information it

Contains. The courts are entitled to refer to the long title of a

Statute to establish the purpose of the legislation (Bhyat v

Commissioner for Immigration (above)).

Page 119

© The definition clause

Almost all statutes contain a definition clause. This is an

Explanatory list of terms in which certain words or phrases

Used in the legislation are defined (see also the example of

An Act in Chapter 2 (above)). A definition section is an

Internal dictionary for that Act only—the definition section

Always starts with the phrase ‘In this Act, unless the context

Indicates otherwise . . .’.

A definition in the definition section is conclusive, unless

The context in which the word appears in the legislation

Indicates another meaning. In that case, the court will follow

The ordinary meaning of the word (Brown v Cape Divisional

Council 1979 (1) SA 589 (A)). In Kanhym Bpk v Oudtshoorn

Municipality 1990 (3) SA 252 © it was held that a deviation

From the meaning in the definition clause will be justified

Only if the defined meaning is not the correct interpretation

Within the context of the particular provision.(e) Express purpose clauses and interpretation

Guidelines

While a preamble is formulated in wide and general terms,

And the long title is nothing more than a summary of the

Contents of an Act, the express purpose clause and

Interpretation guidelines contain more detail and are more

Focused, and should be more valuable during the

Interpretation process. However, by itself none of them can

Be decisive. To take such a view would merely create a new

And sophisticated version of text-based interpretation. The

Interpreter must still analyse the legislative text (as a whole)

Together with all internal and external aids.

Examples of a purpose clause and interpretation guidelines

Are ss 1 and 3 of the Labour Relations Act:

1 Purpose of this Act.

The purpose of this Act is to advance economic development, social

Justice, labour peace and the democratisation of the workplace by fulfilling the

Primary objects of this Act, which are—

To give effect to and regulate the fundamental rights conferred by

Section 27 of the Constitution;

To give effect to obligations incurred by the Republic as a member

State of the International Labour Organisation;

To provide a framework within which employees and their trade

Unions, employers and employers’ organisations can—

Collectively bargain to determine wages, terms andconditions of employment and other matters
of mutual interest;

And

Formulate industrial policy; and

To promote—

Orderly collective bargaining;

Collective bargaining at sectoral level;

Employee participation in decision-making in the workplace;

And

The effective resolution of labour disputes.

Page 121
3 Interpretation of this Act

Any person applying this Act must interpret its provisions—

To give effect to its primary objects;

In compliance with the Constitution; and

In compliance with the public international law obligations of the

Republic.

(f) Headings to chapters and sections

Headings to chapters or sections may be regarded as

Introductions to those chapters or sections. Within the

Framework of text-in-context, headings may be used to

Determine the purpose of the legislation. In the past the

Courts held the literal viewpoint that headings may be used

By the courts to establish the purpose of the legislation only

When the rest of the provision is not clear (Chotabhai v

Union Government 1911 AD 24). In Turffontein Estates v

Mining Commissioner Johannesburg 1917 AD 419 the court

Pointed out that the value attached to headings will depend

On the circumstances of each case.(g) Schedules

Schedules serve to shorten and simplify the content matter

Of sections in legislation. The value of a schedule during

Interpretation depends on the nature of the schedule, its

Relation to the rest of the legislation, and the language in

Which the legislation refers to it. The general rule is that

Schedules, which expound sections of an Act, should have the

Same force of law as a section in the main Act. An example of

A schedule is Schedule 1 of the Constitution (which contains

The description of the national flag). It should be clear that

Schedules have to be consulted when interpreting provisions

In the main part of the Act.

In the case of conflict between the schedule and a section

In the main legislation, the section prevails (African and

European Investment Co v Warren 1924 AD 360). One

Notable exception to this rule was s 232(4) of the 1993

Constitution, which stated that for all purposes the schedules

Were deemed to form part of the substance of the 1993

Constitution. In certain cases the particular schedule will

State that it is not part of the Act and that it does not have

The force of law, in which case it is an external aid and it may

Be considered as part of the context. An example of this is

Schedule 4 of the Labour Relations Act, which consists of flow

Diagrams which explain the procedures for dispute resolution

Set out in the Act.

As was pointed out in Chapter 2, the names and types of

Legislation can be confusing. Sometimes a schedule is a type

Of subordinate legislation, and not a part of the Act (as

Primary legislation). For example, s 207 of the Labour

Relations Act empowers the Minister of Labour—after

Consultation with NEDLAC—to change, add to or replace

Certain schedules in the Act by notice in the Government

Gazette.
ACTIVITY 5.2

(Criticism of the textual approach)

Read paragraph 5.3.1 and identify the points of criticism against the textual approach

(including the way in which this approach was introduced into our law). Make a list of these

Points and briefly explain the meaning and significance of each.

FEEDBACK

Botha himself lists many of these points in bullet form. However, he also adds to the list in

The general discussion. Make sure that you include all the bulleted points and that you add

The points mentioned in the general discussion to the list (e. g. that the textual approach
Leaves little room for judicial creativity). In order to make sure that your list is as

Comprehensive as possible, it might be fruitful to include the criticisms levelled against the

Textual approach in paragraphs 5.3.2 and 5.3.3 and in chapters 6 and 7. You might want to

Return to your list and add to it as you work through these paragraphs and chapters later.
5.3.2 The purposive (text-in-context) approach

Even before 1994, the purposive approach was applied by the courts from time to

Time. This approach dates back to 16th century English law (see paragraph 6.4.4)

And has resulted in a number of important minority judgments. However, it has

Always been overshadowed by the textual approach. Botha is a defender of the

Contextual approach. It is essential that you develop a proper and in-depth

Understanding of WHAT contextualists do when they interpret legislation.

However, these paragraphs also explain WHY we should follow the contextual
Approach in post-apartheid South Africa. The WHAT question of contextual

Interpretation dominates paragraph 5.3.2 and the WHY question of contextual

Interpretation dominates paragraph 5.3.3.

In order to deepen your understanding of the differences between the textual and

The contextual approaches, work through the following activity. The activity takes

You back to the Jaga v Dönges case with which this section started. Your primary aim

Is to understand WHAT textualists and contextualists do when they interpret

Legislation. However, the question WHY the contextualist approach is preferable

Also features in the case

5.3.2 The text-in-context approach

The legislative function is a purposive activity. In terms of

The text-in-context approach, the purpose or object of the

Legislation (the legislative scheme) is the prevailing factor in

Interpretation. The context of the legislation, including social

And political policy directions, is also taken into account to

Establish the purpose of the legislation.

In contrast to the exaggerated emphasis on the legislative

Text, the mischief rule (see 6.4.4 below) is regarded as the

Forerunner of a text-in-context approach to interpretation

(Du Plessis 2002: 96). The mischief rule acknowledges the

Application of external aids: the common law prior to the

Enactment of the legislation, defects in the law not provided

For by the common law, whatever new remedies (solutions)

The legislature provides, and the true reason for the

Remedies. The search for the purpose of legislation requires a

Purpose-orientated approach which recognises the contextual

Framework of the legislation right from the outset, and not

Only

Page 98
In cases where a literal, text-based approach has failed. The

Text-in-context approach provides a balance between

Grammatical and overall contextual meaning. The

Interpretation process cannot be complete until the object

And scope of the legislation (ie its contextual environment)

Are taken into account. In this way the flexibilities and

Peculiarities of language, and all the intra-textual and extra-

Textual factors, are accommodated in the continuing timeframe within which legislation
operates.

Case law example:

In his famous minority decision in Jaga v Dönges

1950 (4) SA 653 (A), Schreiner JA identified the

Following guidelines for interpretation of statutes:

Right from the outset the interpreter may

Take the wider context of provision (eg its ambit

And purpose) into consideration with the legislative

Text in question.

Irrespective of how clear or unambiguous the

Grammatical meaning of the legislative text may

Seem to be, the relevant contextual factors (eg the

Practical effects of different interpretations, as well

As the background of the provision) must be taken

Into account.

Sometimes this wider context may even be

More important than the legislative text.

Once the meaning of the text and context

(language in context) 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 first concrete efforts in South African law

To utilise the wider context to move beyond the plain

Grammatical meaning to ascertain the legislative purpose.

After that, a few courts were more prepared to interpret the

Text of legislation in the light of the wider contextual

Framework.

During the 1970s Cowen (1976 and 1980) started to

Question the theoretical foundations of literalism and the‘intention of the legislature’.

Unfortunately, this process of

Change proved slow, with progression alternating with

Regression. In University of Cape Town v Cape Bar Council

1986 (4) SA 903 (A) Rabie CJ held that the court had to

Examine all the contextual factors in ascertaining the

Intention of the

Page 99

Legislature, irrespective of whether or not the words of the

Legislation were clear and unambiguous.

According to the text-in-context approach, the judiciary

Has inherent law-making discretion during statutory

Interpretation; although an exception to the rule, the courts

May modify or 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, and is not limited to

Mere textual analysis and mechanical application of the

Legislation. However, this discretion is qualified by the

Prerequisite that modification of the meaning of the text is

Possible (and admissible) only if and when the scope and

Purpose of the legislation is clear and supports such a

Modification. Such a 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 and application of the relevant

Legislation in each practical instance. For the text-in-context

Approach the use of the common-law presumptions, as well

As all the various aids to interpretation, are very important

Tools in the quest for the scope and purpose of legislation.

6.4.4 The mischief rule

The historical context of the particular legislation is used to

Place the provision in question in its proper perspective. This

Historical context is also known as the mischief rule. The

Mischief rule was laid down in the 16th century by Lord Coke

In the famous Heydon’s Case (1584) 3 Co Rep 7a (76 ER

637) and forms one of the cornerstones of a text-in-context

Approach to interpretation. It poses four questions that will

Help to establish the meaning of legislation:

What was the existing law (the legal position) before

The legislation in question was adopted?

Which problem (mischief or defect) was not adequately

Addressed by the existing law before the new legislation was

Adopted?

What remedy (solution) is proposed by the new

Legislation to solve this problem?

What is the true reason for the proposed remedy?

The aim of the rule is to examine the circumstances that lead

To the adoption of the legislation in question. The mischief

Rule has been applied on numerous occasions by the courts.

For example, as a result of the incomprehensible language

Used in the Compulsory Motor Vehicle Insurance Act 56 of

1972, the court in Santam Insurance Ltd v Taylor (above)

Examined the historical background of the Act in order to

Ascertain its purpose.

ACTIVITY 5.3

(The contextual approach (before 1994))

During the early 1950s, Jaga was caught selling unwrought gold. He was sentenced to

“three months imprisonment suspended for three years”. Section 22 of Act 22 of 1913 read

As follows:

“Any person who has been sentenced to imprisonment for any offence committed by the

Sale of unwrought precious metal and who is deemed by the Minister to be an undesirable

Inhabitant of the Union, may be removed from the Union under a warrant.”
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 had

Not been sentenced to imprisonment. The Minister argued that a suspended sentence of

Imprisonment is still a sentence of “imprisonment” within the ordinary meaning of section 22.

Jaga argued that “imprisonment” meant actual (as opposed to merely potential)

Imprisonment. “Sentenced to imprisonment” thus meant to be sentenced to be actually and

Physically held in prison, which he was not (his sentence was merely suspended and he

Was allowed to go home).

Assume that you are one of the judges in the case. There is a debate among the judges in

The tearoom on whether the textual or contextual approach should be followed. Explain to

Your colleagues how the textual approach would be applied, how the contextual approach

Would be applied, and which should – in your view – be adopted.

FEEDBACK

Regardless of what the judges who were discussing the case over tea might have thought,
The majority of the court decided to adopt a textual approach (as was common in 1950 when

The case was heard). The court held that the words “sentenced to imprisonment” were not

Further defined or qualified by the legislature. The plain meaning should therefore be

Determined and applied. “Imprisonment”, in plain language, meant that the sentence

Imposed on the offender contained a period of imprisonment (suspended or not) as an

Element. The warrant was thus legally issued as Jaga did receive a sentence of

Imprisonment.

In a minority judgment, Schreiner JA (to whom Botha refers in the textbook), by contrast

Adopted a contextual or purposive approach. He came to the opposite conclusion. His

Judgment is extremely important and has been cited with approval by the Constitutional

Court on more than one occasion.

Schreiner JA described the contextual approach in the following terms: “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
beinterpreted 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 used here, is not limited to

The language of the rest of the statute and is 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 second point is that the

Approach to the work of interpreting may be along either of two lines. Either one may split

The inquiry into two parts and concentrate, in the first instance, on finding out whether the

Language to be interpreted has or appears to have one clear ordinary meaning, confining a

Consideration of the context only to cases where the language appears to admit to more

Than one meaning; or one may from the beginning consider the context and the language to

Be interpreted together.”

Schreiner JA adopted the last-mentioned version of the contextual approach (i.e. “one may

From the beginning …”). Schreiner JA insisted that very few words have a natural or ordinary
Meaning in the sense that their meaning is entirely independent of the context in which they

Are used. The question is thus what words mean, not only in the context in which they are

Used in the legislative text, but also in the context of the purpose of the legislation and the

Mischief that it was designed to remedy. The text and the context must be balanced,

Otherwise the context may be given such an exaggerated importance that the language

Used in the legislation becomes strained, or otherwise the text may be given such an

Exaggerated importance that verbalism and consequent failure to further the aims of the

Legislation might result.

The real impact of Schreiner’s judgment and his contextual approach lies in his willingness

To accept that the phrase “sentenced to imprisonment” did have the clear and ordinary

Meaning which the majority claimed it had. Even so, he insisted, the broader context and

Purpose of the legislation overrode that clear meaning. The purpose of the provision was to

Create an objective test for the identification of undesirable persons who should be removed

From society by deportation. However, the suspension of prison sentences has the opposite
Aim. A suspended sentence is a means of keeping an offender within society while aiding

His or her rehabilitation. To include suspended sentences in the meaning of “sentenced to

Imprisonment” would not serve the purpose of the legislative provision (to remove an

Offended from society). The deportation warrant was thus illegally issued as Jaga had not

Been sentenced to imprisonment for the purposes of section 22.

Scheiner JA held that even the textual approach, if it was correctly applied, should have led

To the same conclusion. It is worthwhile to consider this criticism of the majority approach as

It sheds valuable light on the inner working and limits of the textual approach. According to

Schreiner JA, the ordinary meaning of the expression “sentenced to imprisonment” is

Ambiguous, since the expression could mean both “being physically removed to prison” or

“being sentenced where the sentence includes imprisonment”. Because of this ambiguity,

The secondary aids had to be applied. Since there were no secondary aids available in the

Case which could resolve the choice between the two meanings, the tertiary aids had to be
Applied. One common law presumption is that legislative provisions must be interpreted in

Favour of individual freedom. It must therefore be presumed that the legislature intended the

Deportation of persons only where these persons were unconditionally sentenced to

Imprisonment. To hold otherwise, as the majority did, would subject an unnecessarily large

Range of offenders to the very drastic measure of deportation. It would thus fail to protect the

Value of individual freedom.

It is worthwhile to reflect on the implications of Schreiner’s critique. It ties in

Closely with some of the criticisms levelled against the textual approach discussed

By Botha. Of particular importance is the fact that the majority failed to give the

Common-law presumption in favour of individual freedom any role in its judgment.

They simply resolved the case with an appeal to the apparent clarity of the words

That were used by the legislator (Botha’s first point of criticism). However, the

Meaning of the words used was not so clear to the other members of the court

(Botha’s fourth and fifth points of criticism).

5.3.3 The influence of the supreme Constitution

Tip

This paragraph is extremely important as it contains the most important reason

WHY we should follow the contextual approach and not the textual approach.

Study it very carefully.

The most important reason WHY we should follow the contextual approach is that

The Constitution prescribes the contextual or purposive approach in section 39(2)

And section 233 respectively. However, it does not do so in explicit terms. The

Contextual or purposive approach is implied in these provisions. It is very

Important to understand why Botha insists that the contextual approach is by

Implication prescribed by the Constitution.

Botha argues that the interpretation provisions of the Constitution (sections 39 and

233), read with the supremacy provisions (sections 2, 7, 8 and 237), in effect

Prescribe a contextual, purposive or text- in-context approach to statutory

Interpretation. Study his argument and discussion of these provisions carefully.

Tip

Study this paragraph of the textbook in combination with chapter 9.

5.3.3 The influence of the supreme Constitution
Although most academics in South Africa before 1994
propagated a text-in-context (purposive) method of statutory
interpretation that recognised the vital importance of thelegislative context, few of the courts
actually adopted a less
formalistic approach to interpretation. However, since 27
April 1994 the (largely academic) debate about a text-based
approach versus a text-in-context approach to statutory
interpretation has become irrelevant. Since both the
interim Constitution (s 35(3)) and the 1996 Constitution (s
39(2)) included an express and mandatory interpretation
provision, statutory interpretation (like all law in South
Africa) now has to be conducted within the value-laden
framework of the supreme Constitution which is the highest
law of the land. Apart from the constitutional values, the
interpretation of statutes was transformed by six provisions
of the Constitution, in particular: s 1 (the foundational
provision); s 2 (supremacy of the Constitution); s 7 (the
obligation clause); s 8 (the application clause); s 36 (the
limitation clause) and s 39 (the interpretation clause).
Constitutional supremacy
Section 1 of the Constitution is the foundational clause:
Page 100
The Republic of South Africa is one, sovereign, democratic state founded on
the following values:
Human dignity, the achievement of equality and the advancement
of human rights and freedoms.
Non-racialism and non-sexism.
Supremacy of the constitution and the rule of law.
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government, to
ensure accountability, responsiveness and openness.
Section 2 is the constitutional supremacy clause. According
to Du Plessis (1997: 812) s 1(c) (referring to the supremacy
of the Constitution and the rule of law) merely anticipates
the supremacy of the Constitution; s 2 unambiguously
confirms it:
This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must befulfilled.
Section 2 must be read with s 7 of the Constitution, which
states that the Bill of Rights is the cornerstone of the South
African democracy, and that the state must respect, protect,
promote and fulfil the rights in the Bill of Rights, s 8(1),
which states that the Bill of Rights applies to all law, and
binds the legislature, the executive, the judiciary and all
organs of state, as well as s 8(2), which provides that the Bill
of Rights applies to both natural and juristic persons; and s
237, which states that all constitutional obligations must be
performed diligently and without delay. If all these provisions
are read together, one principle is indisputable: the
Constitution is supreme, and everything and everybody are
subject to it. This means that the Constitution cannot be
interpreted in the light of the Interpretation Act or the
Roman-Dutch common law or traditional customary law.
Everything and everybody, all law and conduct, all cultural
traditions and legal dogmas and religious perceptions, all
rules and procedures, and all theories, canons and maxims of
interpretation are influenced and ultimately qualified by the
Constitution. In Holomisa v Argus Newspapers Ltd 1996 (2)
SA 588 (W) 618 Cameron J summarised this principle very
well:
The Constitution has changed the ‘context’ of all legal thought and decision-
making in South Africa.
The interpretation clause
Section 39(2) of the Constitution (the interpretation of
statutes in general) provides:
Page 101
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 39(2) deals with the interpretation of legislation
other than the Bill of Rights. The Constitution does notexpressly prescribe a contextual
(purposive) approach to
statutory interpretation. However, s 39(2) is a peremptory
provision, which means that all courts, tribunals or forums
must review the aim and purpose of legislation in the light of
the Bill of Rights: plain meanings and so-called clear,
unambiguous texts are no longer sufficient. Even before a
particular legislative text is read, s 39(2) ‘forces’ the
interpreter to promote the values and objects of the Bill of
Rights. This inevitably means that the interpreter is
consulting extra-textual factors before the legislative text is
even considered. Factors and circumstances outside the
legislative text are immediately involved in the
interpretation process. In short, interpretation of statutes
starts with the Constitution and not with the legislative text!
Is this a typical academic flight of fancy? No, I am merely
quoting the Constitutional Court: Ngcobo J said the following
in Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism 2004 (4) SA 490 (CC) paras 72, 80 and
90 (emphasis added):
The Constitution is . . . the starting point in interpreting any legislation. . . .
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 capable of such interpretation . . .
The emerging trend in statutory construction is to have regard to the context
in which the words occur, even where the words to be construed are clear
and unambiguous.
In Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor
Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC) para 21
Langa DP explained the constitutional foundation of this
‘new’ interpretation methodology as follows (emphasis
added):
Section 39(2) of the Constitution . . . means that all statutes must be
interpreted through the prism of the Bill of Rights. All law-making authority
must be exercised in accordance with the Constitution. The Constitution is
located in a history which involves a transition from a society based on
division, injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes all in the process ofgovernance. As such, the
process of
Page 102
interpreting the Constitution must recognise the context in which we find
ourselves and the Constitution’s goal of a society based on democratic
values, social justice and fundamental human rights. This spirit of transition
and transformation characterises the constitutional enterprise as a whole.
Constitutional values
As was explained earlier, the traditional South African
approach to statutory interpretation was characterised by a
strict devotion to the legislative text, and by the sovereignty
of Parliament. Now the supreme Constitution, underpinned
by universally accepted values and norms, is the
fundamental law of the land. It is the ultimate value-laden
yardstick against which nearly everything is viewed and
reviewed. To quote Mokgoro J in S v Makwanyane (above)
498H-I:
With the entrenchment of the Bill of Fundamental Rights and Freedoms in a
supreme Constitution, however, the interpretive task frequently involves
making constitutional choices by balancing competing fundamental rights and
freedoms. This can often only be done by reference to a system of values
extraneous to the constitutional text itself, where these principles constitute
the historical context in which the text was adopted and which help to explain
the meaning of the text. The Constitution makes it particularly imperative for
courts to develop the entrenched fundamental rights in terms of a cohesive
set of values, ideal to an open and democratic society. To this end common
values of human rights protection the world over and foreign precedent may
be instructive.
The preamble to the Constitution refers to a society based on
democratic values, social justice and fundamental human
rights. What are these democratic values? They are, amongst
others, freedom, equality and human dignity (s 7(1)), the
achievement of equality, the advancement of human rights
and freedoms, non-racialism and non-sexism. Sections 36(1)
and 39(1) refer to an open and democratic society based on
freedom, equality and human dignity. It appears as if these
are the three core values on which the Constitution rests: freedom, equality and human dignity.
The spirit, purport and
objects of the Bill of Rights have to be promoted during the
process of statutory interpretation. In other words, the
courts are the guardians and enforcers of the values
underlying the Constitution. As a matter of fact, in terms of
the official oath of judicial officers (item 6(1) of Schedule 2
of the Constitution)
Page 103
the courts have to uphold and protect the Constitution and
the human rights in it. This means that the courts will have
to make certain value judgements during the interpretation
and application of all legislation. Since the values underlying
the Constitution are not absolute, the interpretation of
legislation is also an exercise in the balancing of conflicting
values and rights. Consequently, the interpretation of
statutes can no longer be a mechanical reiteration of what
was supposedly ‘intended’ by Parliament, but is rather what
is permitted by the Constitution.
The impact of constitutionalism
A supreme constitution is not merely another legislative
document, but the supreme law (lex fundamentalis) of the
land. A constitutional state (which has a supreme
constitution) is underpinned by two foundations: a formal
one (which includes aspects such as the separation of
powers, checks and balances on the government, and the
principle of legality: in other words, the institutional power
map of the country); and a material or substantive one
(which refers to a state bound by a system of fundamental
values such as justice and equality). In S v Makwanyane
(above) para 262 the late Mahomed J referred to a supreme
constitution in the following ringing tones (emphasis added):
All constitutions seek to articulate, with differing degrees of intensity and
detail, the shared aspirations of a nation; the values which bind its people,
and which discipline its government and its national institutions; the basicpremises upon which
judicial, legislative and executive power is to be wielded;
the constitutional limits and the conditions upon which that power is to be
exercised; the national ethos which defines and regulates that ethos; and the
moral and ethical direction which that nation has identified for its future. In
some countries, the Constitution only formalises, in a legal instrument, a
historical consensus of values and aspirations evolved incrementally from a
stable and unbroken past to accommodate the needs of the future. The
South African Constitution is different: it retains from the past only what is
defensible and represents a decisive break from, and a ringing rejection of,
that part of the past which is disgracefully racist, authoritarian, insular, and
repressive and a vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated
in the Constitution.
The preamble to the interim Constitution stated that the
Republic of South Africa is a constitutional state (regstaat),
but
Page 104
the Constitution of 1996 does not expressly refer to a
constitutional state. Nevertheless, there are a number of
provisions in the Constitution which imply a constitutional
state: the preamble refers to a society based on democratic
values, social justice and fundamental human rights; s 1
states that South Africa is, amongst other things, a
democratic state founded on the supremacy of the
Constitution and the rule of law; and s 7 entrenches the Bill
of Rights as the cornerstone of the democracy. As the
supreme law of the land, the Constitution not only deals with
the institutional structures of government and formal checks
on state power, but is first and foremost a value-laden
document. It is underpinned by a number of express and
implied values and norms. These fundamental principles are
not only the ideals to which the South African society has
committed itself, but they form the material (substantive)
guidelines which must regulate all the activities of the state.
The spirit of the Bill of Rights (s 39(2)) is a reflection of
these fundamental principles. Apart from in the Constitution
itself, these values are found in various sources: eg theprinciples of international human rights
law and foreign case
law dealing with similar constitutions (s 39(1)), the African
concept of ubuntu (see also 6.3.2 below) and our common-
law heritage.
Froneman J explained the demands of the supreme
Constitution on statutory interpretation as follows in
Qozeleni v Minister of Law and Order (above) at 635 and
637:
The only material difference between that common-law approach and the
present approach is the recognition that the previous constitutional system of
this country was the fundamental ‘mischief’ to be remedied by the application
of the new Constitution. That Rubicon needs to be crossed not only
intellectually, but also emotionally, before the interpretation and application of
the present Constitution is fully to come into its own right . . . For the
Constitution, and particularly chapter 3 thereof, however, to fulfil its purpose it
needs to become, as far as possible, a living document, and its contents a
way of thinking, for all citizens of this country. The establishment of a culture
of constitutionality can hardly succeed if the Constitution is not applied daily in
our courts, from the highest to the lowest.
Unfortunately, not all the courts in South Africa hold this
view, and some continue to follow a literalist approach to
interpretation, without reference to the supreme Constitution
and its values. In Kalla v The Master 1995 (1) SA 261 (T)
269C-G the court held that the traditional rules of statutory
Page 105
interpretation still formed part of the law of the land and that
they were not affected by the interim Constitution.
Consequently, the orthodox plain meaning rule was applied:
if the text is ambiguous, the traditional rules of
interpretation of statutes may be applied to find the
‘intention of the legislature’. In other words, the traditional
common-law rules of statutory interpretation trumped the
supreme Constitution! Other courts still follow judgments
such as this, which means that for many courts statutory
interpretation is still a mechanical and formalistic exercise.
In Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) 32D-Ethe court still emphasised the
orthodox primary rule of
interpretation is that the courts must give effect to the literal
or grammatical meaning of the legislation, and that deviation
from this rule will be allowed only in exceptional
circumstances. In similar vein the court in Mateis v Ngwathe
Plaaslike Munisipaliteit 2003 (4) SA 361 (SCA) held that in
the light of the clear wording of the Act, the word ‘state’ in ss
1 and 3 of State Liability Act 20 of 1957 does not include a
municipality. An interpretation otherwise would mean that
the court will not interpret the Act, but rather amend it. The
court reasoned that it did not have such powers in cases
where the constitutionality of the relevant statutory
provision was not in dispute, or—in typical orthodox text-
based tradition—where the meaning of the Act under
consideration was clear.

ACTIVITY 5.4

(The contextualist approach after 1994)

Botha relies in his argument on two cases in which the Constitutional Court has clarified the

Implications of section 39(2) for statutory interpretation. Identify those cases and summarise

The principles that are apparent in the quotations included by Botha.

FEEDBACK

The two cases in question are Bato Star Fishing v Minister of Environmental Affairs and

Tourism and Investigating Directorate: Serious Economic Offences v Hyundai (note that S v

Makwanyane does not deal with statutory interpretation or section 39(1) but rather with the

Interpretation of the Constitution itself and therefore section 39(1)). Bato Star confirms that

The primary and golden rules of textual interpretation do not apply in our law any more.
Section 39 (2) implies that even where the ordinary meaning of the legislation is clear and

Unambiguous, the interpreter must still try to ascribe the meaning to those words that will

Best promote at least one identifiable value enshrined in the Bill of Rights. The context in

Which legislation operates is thus decisive for its meaning. In the Hyundai case, the court

Made it clear that the “context” to which Bato Star refers is the Bill of Rights. However, this

Purposive reading of the words is limited to cases where the words of the statute are

Capable of such an extraordinary interpretation.

In order to understand these principles properly, it is best to look more carefully at the facts

Of the Bato Star case. 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. The quota which each trawler is allowed to catch is determined by the Minister of

Environmental Affairs and Tourism in terms of the Marine Living Resources Act 18 of 1998.

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.

The Bato Star fishing company was allocated a quota for the year. However, it 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. How should

The phrase “have regard to” be interpreted and understood in this case?

The Supreme Court of Appeal answered the question by asking, in a textualist fashion, what

The ordinary meaning of the words “have regard to” was. 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 in terms
Of section 18(5), 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. It claimed 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.

In his judgment, Ngcobo J expressed concern about the textual method of interpretation

Followed in the Supreme Court of Appeal. He agreed that the ordinary meaning of the

Phrase “have regard to” was “to take into account”, but 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. Referring to the minority judgment in Jaga v Dönges (see above)

With approval, the court made the following statement:

“I accept that the ordinary meaning of the phrase ‘have regard to’ has in the past been

Construed by our courts to mean ‘bear in mind’ or ‘do not overlook’. However, the meaning

Of that phrase must be determined by the context in which it occurs. In this case that context

Is the statutory commitment to redressing the imbalances of the past, and more importantly,

The constitutional commitment to the achievement of equality. And this means that the

Phrase as it relates to section 2 must be construed purposively to ‘promote the spirit, purport

And objects of the Bill of Rights’. […] The technique of paying attention to context in statutory

Construction is now required by the Constitution, in particular, s 39 (2). […] I am troubled

Therefore by an interpretative approach that pays too much attention to the ordinary

Language of the words ‘have regard to’.”

It is important that you carefully identify the various elements of the purposive or
Contextual interpretation which the court adopted in this case. The first is the claim

That section 39 (2) of the Constitution requires that paragraph 2 of the Marine

Living Resources Act, 1998, must be read purposively. This point is discussed in

Detail by Botha in paragraph 5.3.3 of the textbook. The second element is the claim

That the purpose in question is the promotion of the spirit, purport and object of

The Bill of Rights. This implies that all legislation should be approached as a more

Detailed attempt to implement constitutional rights. However, the spirit of the Bill

Of Rights is contained in the foundational provisions of the Constitution. This

Point is discussed in detail by Botha in paragraphs 5.3.3 and 9.3 of the textbook. To

Gain a better understanding of the last-mentioned paragraphs, complete the

Following activity
9.3 How to interpret the constitution

In Nortje v Attorney-General of the Cape (above) 472F-G,

Marais J questioned the categorisation of theories and canons

Of constitutional interpretation:[T]he approaches adopted by other Courts and constitutional
lawyers to the

Interpretation, limitation and application of constitutionally entrenched rights

Are undoubtedly a valuable aid to understanding what is entailed in those

Processes. Logically structured and systematic approaches have an inherent

Appeal for lawyers. However, they remain what they are, not holy writ, but

Simply methodological approaches which are not necessarily the only

Legitimate approaches to the task . . . I regard it as unwise to settle too

Dogmatically now upon one methodology at this very early and embryonic

Stage

Page 189

Of applying our newly devised Constitution to concrete situations. Indeed, it is

Questionable whether it would be wise to do so at any stage.

9.3.1 Constitutional guidelines

What does the Constitution say about its interpretation?

Section 39(1) of the Constitution provides the following with

Regard to interpretation of the Bill of Rights:

When interpreting the Bill of Rights, a court, tribunal or forum—

Must promote the values which underlie an open and democratic

Society based on human dignity, equality and freedom;

Must consider international law; and

May consider foreign law.

The first part of the provision is peremptory: when

Interpreting the Bill of Rights, a court, tribunal or forum

Must make value judgements (ie promote the values which

Underlie an open and democratic society based on human

Dignity, equality and freedom) and must have regard to

International law (international human rights law in

Particular). This is a set of universal rules and norms dealing

With the protection of fundamental human rights and consists

Of a number of international documents and rules of

Customary international law.

Furthermore, a court, tribunal or forum may also refer to

Foreign law when interpreting the Bill of Rights. The rules of

Foreign law applicable here are those legal principles (in

Particular case law) which do not conflict with the South

African legal order (s 35(1) of the interim Constitutionreferred to ‘comparable foreign case
law’); in other words,

Those legal principles applied in a democratic legal order

Based on constitutionalism.

The interpretation clause of the Bill of Rights must be read

With the supremacy clause, as well as with s 1. Section 1 is

Arguably one of the most important provisions in the

Supreme Constitution:

The Republic of South Africa is one, sovereign, democratic state founded on

The following values:

Human dignity, the achievement of equality and the advancement

Of human rights and freedoms.

Non-racialism and non-sexism.

Universal adult suffrage, a national common voters roll,

Page 190

Regular elections and a multi-party system of democratic government,

To ensure accountability, responsiveness and openness.

An in-depth discussion of all the rules and principles of

Constitutional interpretation is a subject on its own. The

Following are some of the general principles formulated by

Southern African courts:

A supreme constitution must be given a generous and

Purposive interpretation (Shabalala v The Attorney-General

Of Transvaal 1996 (1) SA 725 (CC) 740 para 26). In

Nyamakazi v President of Bophuthatswana (above) 567H it

Was held that a purposive interpretation of the Constitution

Is necessary, since it enables the court to take into account

More than legal rules:

These are the objectives of the rights contained therein, the

Circumstances operating at the time when the interpretation has to be

Determined, the future implications of the construction, the impact of

The said construction on future generations, the taking into account of

New developments and changes in society.

Case law also refers to a liberal interpretation of the

Constitution. A liberal interpretation does not have a political

Connotation, but refers to flexibility and generosity. The

Constitution must be liberally construed, taking into accountits terms and spirit, the intention of
the framers and the

Objectives of and reasons for the legislation. In the process,

The ordinary rules of statutory interpretation must give way

To this more adaptable and flexible method.

During the interpretation of the Constitution, its spirit

And tenor must be adhered to (S v Acheson (above)). This

Means that the values and moral standards underpinning the

Constitution must be taken into account throughout the

Entire interpretation process.

A provision in the Constitution cannot be interpreted in

Isolation, but must be read in the context as a whole. The

Context includes the historical factors that led to the adoption

Of the Constitution in general, and the fundamental rights in

Particular (S v Makwanyane (above)).

Respect must be paid to the language employed in the

Constitution. Although the text is balanced and qualified by

Various contextual factors, the context is anchored to the

Particular constitutional text. In other words, historical

Context and comparative interpretation can never reflect a

Page 191

Purpose that is not supported by the constitutional text

As a legal instrument. However, this does not imply a

Mechanical adherence to the strict austerity of literal

Legalism (Shabalala v The Attorney-General of

Transvaal (above) 740 para 27). In Nyamakazi v

President of Bophuthatswana (above) 566G this

Method was referred to as an open-ended process of

Elucidation and commentary which explores, reads into,

Derives and attaches significance to every word, section

Or clause in relation to the whole context.

In S v A Juvenile 1990 (4) SA 151 (ZSC) 176B, the

Court stressed the fact that the Constitution, as the supreme

Law of the land, has bestowed on the court the sacred trust of

Protecting human rights.•

•
The Constitution was drafted with a view to the future,

Providing a continuing framework for the legitimate exercise

Of government power and the protection of individual rights

And freedoms (Khala v The Minister of Safety and Security

(above) 122D–E). The Constitution has to be interpreted in

The context and setting existing at the time when the case is

Heard, and not when it was passed, otherwise the growth of

Society will not be taken into account. The Constitution must

Be interpreted so that it gives clear expression to the values

The Constitution intends to nurture for the future (Qozoleni v

Minister of Law and Order (above)).

Some die-hard supporters of the orthodox text-based

Approach who do not understand a system of constitutional

Supremacy refer to constitutional interpretation as a free-

Floating exercise. This is simply not correct. Ultimately,

Constitutional interpretation is a question of law: if the

Particular legislation is consistent with the Constitution, it is

Valid and in force; if not, the court which exercises a judicial

Check in terms of the Constitution will declare it

Unconstitutional and strike it down. Constitutional

Interpretation is an exercise in the balancing of various

Societal interests and values.

These methods and principles of constitutional

Interpretation do not constitute a closed set of hard and fast

Rules. Constitutional interpretation is an inherently flexible

Process. It is not a dogmatic and mechanical application of

Predefined approaches and rules. Allowance must be made

For changing circumstances (Nortje v Attorney-General of the

Cape (above) 472F–473C).

Page 192

The principles of international human rights law and

Foreign law must be applied with due regard for the South

African context (S v Zuma 1995 (2) SA 642 (CC) 651H–I). In

Other words, constitutional interpretation must start and endwith the South African Constitution
(S v Makwanyane

(above) 406E–407C, Du Plessis v De Klerk (above) para

123).

All judges and judicial officers are obliged to interpret

And apply legislation so as to give effect to the fundamental

Values and rights in the supreme Constitution. This role is

Not a mechanical reiteration of the mythical intent of the

Lawgiver, but is rather an ongoing, value-based struggle

Between competing rights and values. This struggle

(engagement) with the constitutional text, context, law and

Society in transformation is eloquently described (with

Reference to the limitation of rights) by Sachs J in Prince v

Cape Law Society 2002 (2) SA 794 (CC) para 155:

What it requires is the maximum harmonisation of all the competing

Considerations, on a principled yet nuanced and flexible case-by-case

Basis, located in South African reality yet guided by international

Experience, articulated with appropriate candour and accomplished

Without losing sight of the ultimate values highlighted by our

Constitution. In achieving this balance, this Court may frequently find

Itself faced with complex problems as to what properly belongs to the

Discretionary sphere which the Constitution allocates to the Legislature

And the Executive, and what falls squarely to be determined by the judiciary
ACTIVITY 5.5

(The Constitution and statutory interpretation)

Section 39(1) of the Constitution deals with the interpretation of the Bill of Rights. Write an

Essay of about one page in which you discuss whether this section is also relevant to the

Interpretation of ordinary legislation. Make sure you explain your opinion in detail. Rem-

Ember: your opinion must be based on the provisions of the Bill of Rights (included in the

Back of your textbook).

FEEDBACK

Section 39 (1) deals with the interpretation of the Bill of Rights and says, in effect, that the

Bill of Rights should be interpreted in the light of the foundational provisions of our open and

Democratic constitutional order. Those democratic values are found in the preamble to the

Constitution and paragraph 1 of the Constitution. One could say that these democratic
Values reflect the spirit of the Bill of Rights. Note, however, that section 39(1) says nothing

Directly about the interpretation of ordinary legislation. However, section 39(2) says that the

Spirit of the Bill of Rights must be promoted when ordinary legislation is interpreted. In order

To understand what the spirit of the Bill of Rights is, we thus have to turn to section 39 (1)

When interpreting ordinary legislation. The point is that when the two sections are read

Together, a purposive or contextual approach to ordinary legislation is required. The letter of

The law must now, in all cases, be subject to the (democratic) spirit of the law.
5.3.5 Practical inclusive method of interpretation
5.3.6
In this paragraph, Botha finally identifies and discusses the five aspects of the

Contextual or purposive approach to statutory interpretation. These are not

Alternative methods of interpretation, nor do they form any hierarchical order. The

Context that is celebrated by the contextual method of interpretation includes the

Specific text of the legislative provision, the structure and purpose of the legislation

As a whole, the transformative spirit of the Constitution, the historical background

Of the legislation and the globalisation of legislative responses. All these aspects of

The greater context must be taken into account whenever a piece of legislation is

Interpreted. You need to be able to identify the various aspects of the interpretive

Context and explain in one or two sentences what each entails.As was mentioned above, some
textbooks on statutory interpretation proceed by

Discussing the various rules and principles of interpretation that allow each of these

Aspects to be given due weight. These textbooks therefore list and discuss all the

Rules relevant to historical interpretation, and so forth. Botha does not follow this

Approach but describes how the interpretive process has unfolded in various phases

Over time. The first of these phases, the so-called “initial phase”, is the topic of the

Next chapter.
5.3.4 Practical, inclusive method of

Interpretation

Interpretation of statutes is a process, but it is not a

Predetermined mechanical process consisting of mutually

Exclusive steps based on aspects such the clarity of the text

(eg the text-based contention that context becomes

Important only if and when the text seems unclear, and so

On). Examples of such incremental ‘only if’ mind-sets are still

Doing the rounds. Kellaway (1995: 187) suggests a so-called

‘triple-synthesis’ of literalism, intentionalism and

Purposivism, calling for a ‘careful appraisement of each of

These determining factors or guides.’ The problem with this

Approach is that the foundations of the three factors are so

Irreconcilable that the synthesis (amalgamation) will

Necessarily result in the usual text-based, formalistic, step-

By-step method of legal reasoning; only if the literal meaning

Of the text is not clear may the interpreter embark on a

Search for the legislature’s intention and the legislative

Purpose.
Case law example:

A text-based, hybrid approach was used by the

Western Cape High Court in Shackleton Credit

Management (Pty) Ltd v Scholtz (unreported case

12611/2010, Western Cape High Court). The court

Had to decide whether a close corporation was to be

Regarded as a company within the meaning of s

13(1)(g) of the Prescription Act 68 of 1969, and

Considered three interpretation approaches:

The golden rule (the plain meaning of the text

Must be followed unless it leads to an absurdity or a

Result not intended by the legislature);

The purposive approach (the words must be

Read in context); and

Reading-in in an attempt to make sense of the

Legislation (the creative role of the court).

There are two problems with this reasoning: first, it

Is also based on a mutually exclusive way of

Thinking: if method A does not work the court will

Try method B, and so on; and second, to argue that

A court will use ‘reading in’ (a form of corrective

Interpretation) as a method to make sense of the

Legislation is to put the cart before the horse. After

All (as will be discussed in Chapter 7 below), the

Legislative purpose must be clear before a court

May apply corrective interpretation; it is ludicrous

To suggest that a court may read words into the

Legislation in order to understand it (make sense of

It)!In Govender v Minister of Safety and Security 2001 (4) SA

273 (SCA) the court acknowledged that interpretation of

Legislation under the Constitution requires a new mind-set:

The court has to sail between the dangers of the Scylla of the

Old-style literalism and the Charybdis of judicial law-making.

It would seem that the court was trying to suggest that

Interpretation involves a journey between an orthodox text-

Based approach and free-floating judicial law-making, and

That the correct course is to be plotted somewhere between

The two. However, it is not entirely clear whether the court

Was in actual fact trying to propagate a particular approach

To interpretation—the phrase ‘between Scylla and Charybdis’

Does not refer to avoiding both possible dangers by trying to

Find some safe middle ground, but rather to having to choose

The lesser of two evils.

Page 107

Please note:

In Greek mythology, Scylla and Charybdis were two

Monsters who lurked on opposite sides of the Strait

Of Messina (between Italy and Sicily). Scylla was a

Six-headed monster and Charybdis was a dangerous

Whirlpool, and a ship sailing the strait was bound to

Be destroyed by one of the monsters. The legend of

The monsters gave rise to a number of phrases:

‘between Scylla and Charybdis’; ‘between the devil

And the deep blue sea’; and ‘between a rock and a

Hard place’—meaning a situation where one has to

Choose between two equally unattractive options.

Fortunately there is a practical, sensible and theoretically

Correct alternative. Du Plessis & Corder (1994: 73-74)originally suggested five practical
interrelated techniques for

Constitutional interpretation. However, Du Plessis (2002:

197-274) has applied this practical and inclusive method for

Statutory interpretation as well. These suggested techniques

Form the basis of a practical, inclusive method of

Interpretation which is used in the following chapter of this

Book. These components of a practical methodology are

Complementary and interrelated, and should be applied in

Conjunction with one another.

Eskridge (2001: 207) also describes a pragmatic approach

To interpretation which is based on a—

Grab bag of different techniques, including not just textual analysis, but also

Sophisticated appreciation of the goals underlying the legal text and the

Consequences of adopting different interpretations. Law involves a balance

Between form and substance, tradition and innovation, text and context.

However, the Du Plessis model is much more than that. As a

Result of the influence of the Constitution and the

Constitutional values, this suggested practical, inclusive

Method of interpretation also includes a strong normative

Component. This practical and inclusive method consists of

The following components:

Words and phrases: the language aspect

This aspect 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,

Punctuation,

Page 108

Sentences and other structural components of the text, and

On the rules of syntax (the rules dealing with the order of

Words in a sentence). However, this does not imply a return

To literalism and the orthodox text-based interpretation. It

Merely acknowledges the importance of the legislative text in

The complex process of interpretation.

Structure and context: the systematic aspect

This method is concerned with the clarification of the

Meaning of a particular legislative provision in relation the

Legislative text as a whole. This is also known as a holistic

Approach, and refers to the principle that 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 all other

Contextual considerations (eg the social and political

Loop
Environments) in which the legislation operates.

Teleological interpretation: the value-based aspect

This aspect emphasises fundamental constitutional values

And value-coherent interpretation. The aim and purpose of

The legislation must be ascertained against the fundamental

Constitutional values; in other words, s 39(2) of the

Constitution. The fundamental values in the Constitution

Form the foundation of a normative, value-laden

Jurisprudence during which legislation and actions are

Evaluated against (and filtered through) those constitutional

Values.

Historical aspect

This method refers to the use of the historical context of the

Legislation. The historical context includes factors such as the

Circumstances which gave rise to the adoption of the

Legislation (mischief rule) and the legislative history (prior

Legislation and preceding discussions). Although it is an

Important aspect of interpretation, the historical perspective

Cannot be decisive on its own.

Comparative aspect

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.This inclusive method of interpretation

is not really new or

Radical. It merely brings together all the different aspects or

Page 109

Techniques necessary for interpretation: the enacted law-text

With all the linguistic complexities of grammar, syntax and

Spelling; the context of the text, including the relationship of

Different parts of the text with another, other texts outside

The legislation (such as the Constitution, other legislation as

Well as relevant surrounding circumstances); the purpose

(legislative scheme) of the legislation, as well the important

Substantive element of fundamental constitutional values;

The historical context of the legislation such as the

Discussions and deliberations preceding the passing of the

Legislation, the mischief rule, explanatory memoranda and

Policy documents; and the comparative dimension (foreign

Case law and international law). It is not just another

Template for a mechanical application of words and phrases

With passing reference to values and context. It is a total,

Integrated framework with which (and within which)

Interpretation of statutes as a process should take place; a

Practical, all-encompassing methodology to deal with the

Complexities and nuances of statutory interpretation.

Case law example:

These techniques are not merely academic

Exercises. Although the courts do not expressly

Apply this inclusive method of interpretation, some

(or most) of these components could be identified in

Certain judgments. For instance, with the exception

Of comparative interpretation, the other

Components may be identified in the following

Dictum from Minister v Land Affairs v Slamdien 1999

(3) BCLR 413 (LCC) 422 para 17 (emphasis added):

The purposive approach as elucidated in the decisions of the

Constitutional Court and this Court requires that one must:

In general terms, 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 of the statute as a

Whole, the subject matter and broad objects of the statute and
The values which underlie it;

Page 110

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 . . .

TEST YOURSELF

(1) List ten criticisms of the textual approach and briefly explain each.

(2) Explain why the following judgments are important for the theory and prac-

Tice of statutory interpretation:

(i) Public Carriers Association v Toll Road Concessionaries Pty (Ltd)

(ii) Jaga v Dönges

(iii) Bato Star Fishing Pty (Ltd) v Minister of Environmental Affairs and Tourism
 (iv) Heydon’s case

(3) Write a note on the influence of the 1996 Constitution on statutory interpreta-

Tion (including a detailed discussion of the supremacy, foundational and

Interpretation clauses of the Constitution).

(4) Name and discuss the various dimensions of the “practical inclusive method

Of interpretation” favoured by Botha.

STUDY UNIT 5

You work as a judge’s clerk and are confronted with the following set of 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 54 of 1971. 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 79 kilometres, but by-passed 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-caleld

Alternative road involved travelling a total of 79 kilometres 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.

The judge has asked you to help him prepare a judgment. What should the court decide here?

How should the phrase “an alternative road” be interpreted? Perhaps it would help to use a

Dictionary to look up what the words “road” and “alternative” mean? The judge has asked you to
Do so. Write down the ordinary language meanings of “road” and “alternative”. Are you any
closer

To resolving the legal dispute?

The case in question is Public Carriers Association v Toll Road Concessionaries Pty (Ltd) 1990

(1) SA 925 (AD).

It is indeed one of the last authoritative statements of the textual approach by the (then) Appellate

Division before the introduction of the new constitutional order. However, what Botha does not

Mention is that the judgment also suggested that the purpose of the legislation could solve

Interpretation problems as a last resort when the textual approach could not (i.e. when the

Language, the secondary aids and the common law presumptions could not resolve the

Uncertainty or absurdity). The court thus partially recognized 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.

Nevertheless, it also serves as a good example of the textual approach.

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 recognized 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 did not provide any solution to

The problem. What next?

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. At the time this

Was a controversial step to take. However, the court then continued as follows: 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

Tollgates. It followed the declaration of the relevant portion of the N3 as a toll road was
valid.Read paragraph 5.3.1 and identify the points of criticism against the textual approach
(including

The way in which this approach was introduced into our law). Make a list of these points and
briefly

Explain the meaning and significance of each

The criticism of the text-based (literal) approach to statutory interpretation may be summarized

As follows:

 The normative role of the common-law presumptions during the interpretation process is

Reduced to a mere “last resort” to be applied only if the legislative text is ambiguous;
 That words (their literal meaning) are regarded as the primary index to legislative meaning;

 Other important internal and external aids to interpretation, which could be applied to

Establish the meaning of text-in-context are ignored;

 The “intention of the legislature” is ultimately dependent on how clear the language used

In the legislation may be to the particular court;

 Very few texts are so clear that only one final interpretation is possible;

 The text-based approach leaves very little room for judicial law-making, and the courts are

Cease to have any law-making function, and the courts are seen as mere mechanical

Interpreters of the law. This view creates the impression that once the legislature has

Spoken, the courts cease to have any law-making function. According to the text-based

Approach, the legislature has enacted everything it wanted to, and is aware of the existing

Law.

This text-bases approach was the predominant approach to interpretation in South Africa prior to
1994, and regrettably many of the courts still follow the traditional plain meaning approach.

During the 1950s, Jaga was caught selling unwrought gold. He was sentenced to ‘three months

Imprisonment suspended for three years”. Section 22 of Act 22 of 1913 read as follows:

“Any person who has been sentenced to imprisonment for any offence committed by the sale of

Unwrought precious metal and who is deemed by the Minister to be an undesirable inhabitant of

The Union, may be removed from the Union under a warrant”.

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 had not

Been sentenced to imprisonment. The Minister argued that a suspended sentence of

Imprisonment is still a sentence of “imprisonment” within the ordinary meaning of section 22.
Jaga

Argued that “imprisonment” meant actual (as opposed to merely potential) imprisonment.

“Sentenced to imprisonment” thus meant to be sentenced to be actually and physically held in

Prison, which he was not (his sentence was merely suspended and he was allowed to go home).
Assume that you are one of the judges in the case. There is a debate among the judges in the

Tearoom on whether the textual or contextual approach should be followed. Explain to

yourcolleagues how the textual approach would be applied, how the contextual approach would
be

Applied, and which should – in your view – be adopted.

Regardless of what the judges who were discussing the case over tea might have thought, the

Majority of the court decided to adopt a textual approach (as was common in 1950 when the case

Was heard). The court held that the words “sentenced to imprisonment” were not further defined

Or qualified by the legislature. The plain meaning should therefore be determined and applied.

“Imprisonment” in plain language meant that the sentence imposed on the offender contained a

Period of imprisonment (suspended or not) as an element. The warrant was thus legally issued

As Jaga did receive a sentence of imprisonment.

In a minority judgment, Schreiner JA (to whom Botha refers to in the textbook) by contrast
adopted

A contextual or purposive approach. He came to the opposite conclusion. His judgment is

Extremely important and has been cited with approval by the Constitutional Court on more than
One occasion.

Schreiner JA described the contextual approach in the following terms: “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 used here, is not limited to the language of the

Rest of the statute and is 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 second point is that the approach to the work of
interpreting

May be along either of two lines. Either one may split the in quiry into two parts and concentrate,

In the first instance, on finding out whether the language to be interpreted has or appears to have

One clear ordinary meaning, confining a consideration of the context only to cases where the

Language appears to admit to more than one meaning, or one may from the beginning consider
The context and the language to the be interpreted together”.

Schreiner JA adopted the last-mentioned version of the contextual approach (i.e. “one may from

The beginning…..”). Schreiner JA insisted that very few words have a natural or ordinary
meaning

In the sense that their meaning is entirely independent of the context in which they are used. The

Question is thus what words mean, not only in the context in which they are used in the
legislative

Text, but also in the context of the purpose of the legislation and the mischief that it was
designed

To remedy. The text and the context must be balanced, otherwise the context may be given such

An exaggerated importance that the language used in the legislation becomes strained, or

Otherwise the text may be given such an exaggerated importance that verbalism and consequent

Failure to further the aims of the legislation might result.

The real impact of Schreiner’s judgment and his contextual approach lies in his willingness to

Accept that the phrase “sentenced to imprisonment” did have the clear and ordinary meaning
Which the majority claimed it had. Even so, he insisted, the broader context and purpose of the

Legislation overrode that clear meaning. The purpose of the provision was to create an objective

Test for the identification of undesirable persons who should be removed from society by

Deportation. However, the suspension of prison sentences has the opposite aim. A suspended

Sentence is a means of keeping an offender within society while aiding his/her rehabilitation. To

Include suspended sentences in the meaning of “sentenced to imprisonment” would not serve the

Purpose of the legislative provision (to remove an offended from society). The deportation
warrant
Was thus illegally issued as Jaga had not been sentenced to imprisonment for the purposes of

Section 22.

Schreiner JA held that even the textual approach, if it was correctly applied, should have led to

The same conclusion. It is worthwhile to consider this criticism of the majority approach as it
sheds

Valuable light on the inner working and limits of the textual approach. According to Schreiner
JA,

The ordinary meaning of the expression “sentenced to imprisonment” is ambiguous, since the
Expression could mean both “being physically removed to prison” or “being sentenced where the

Sentence include imprisonment”. Because of this ambiguity, the secondary aids had to be

Applied. Since there were no secondary aids available in the case which could resolve the choice

Between the two meanings, the tertiary aids had to be applied. One common law presumption is

That legislative provisions must be interpreted in favour of individual freedom. It must therefore

Be presumed that the legislature intended the deportation of persons only where these persons

Were unconditionally sentenced to imprisonment. To hold otherwise, as the majority did, would

Subject an unnecessarily large range of offenders to the very drastic measure of deportation. It

Would thus fail to protect the value of individual freedom.

Botha relies in his argument on two cases in which the Constitutional Court has clarified the

Implications of section 39(2) for statutory interpretation. Identify those cases and summarise the

Principles that are apparent in the quotations included by Botha

The two cases in question are

1. Bato Star Fishing v Minister of Environmental Affairs and

 2. Tourism and Investigating Directorate: Serious Economic Offences v Hyundai

(Note: S v Makwanyane does not deal with statutory interpretation of section 39(1) but rather
with

The interpretation of the Constitution itself and therefore section 39(1))

Bato Star confirms that the primary and golden rules of textual interpretation do not apply in our

Law any more. Section 39(2) implies that even where the ordinary meaning of the legislation is

Clear and unambiguous, the interpreter must still try to ascribe the meaning to those words that

Will best promote at least one identifiable value enshrined in the Bill of Rights. The context in

Which legislation operates is thus decisive for its meaning.

In the Hyundai case, the court made it clear that the “context” to which Bato Star refers is the
Bill

Of Rights. However, this purposive reading of the words is limited to cases where the words of

The statute are capable of such an extraordinary interpretation.

In order to understand these principles properly, it is best to look more carefully at the facts of
the
Bato Star case. The case concerned the allocation of quotas in the fishing industry. The amount

Of the fish that may be caught by a deep-sea fishing trawler is limited by a quota system. The

Quota which each trawler is allowed to catch is determined by the Minister of Environmental
Affairs

And Tourism in terms of the Marine Living Resources Act 18 of 1998. 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. The Bato Star fishing company was allocated a quota for the year. However, it
complained that

Its quota was too small, and approached the court to have the allocation of quotas set aside. The

Case turned the question whether the Minister did “have regard to” the objective of achieving
Equity in the fishing industry when quotas were allocated. How should the phrase “have regard

To” be interpreted and understood in this case?

The Supreme Court of Appeal answered the question by asking, in a textualist fashion, what the

Ordinary meaning of the words “have regard to” was. 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 in terms of section 18(5),

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. It claimed 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.

In his judgment, Ngcobo J expressed concern about the textual method of interpretation followed

In the Supreme Court of Appeal. He agreed that the ordinary meaning of the phrase “have regard

To” was “to take into account”, but 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. Referring to

The minority judgment in Jaga v Donges with approval, the court made the following statement:

“I accept that the ordinary meaning of the phrase “have regard to” has in the past been construed

By our courts to mean ‘bear in mind’ or ‘do not overlook’. However, the meaning of that phrase

Must be determined by the context in which it occurs. In this case that context is the statutory

Commitment to redressing the imbalances of the past, and more importantly, the constitutional
Commitment to the achievement of equality. And this means that the phrase as it relates to
section

2 must be construed purposively to ‘promote the spirit, purport and objects of the Bill of Rights’

[…] the technique of paying attention to context in statutory construction is now required by the

Constitution, in particular section 39(2) ..[..] I am troubled therefore by an interpretative

approach

That pays too much attention to the ordinary language of the words ‘have regard to”.

Section 39(1) of the Constitution deals with the interpretation of the Bill of Rights. Write an
essay

Of about one page in which you discuss whether this section is also relevant to the interpretation

Of ordinary legislation. Make sure you explain your opinion in detail. Remember: your opinion

Must be based on the provisions of the Bill of Rights.

Section 39(1) deals with the interpretation of the Bill of Rights and says, in effect, that the Bill of

Rights should be interpreted in the light of the foundational provisions of our open and
democratic

Constitutional order. Those democratic values are found in the preamble to the Constitution and
Paragraph 1 of the Constitution. One could say that these democratic values reflect the spirit of

The Bill of Rights.Note, however, that section 39(1) says nothing directly about the
interpretation of ordinary

Legislation. However, section 39(2) says that the spirit of the Bill of Rights must be promoted
when

Ordinary legislation is interpreted. In order to understand what the spirit of the Bill of Rights is,
we

Thus have to turn to section 39(1) when interpreting ordinary legislation.

The point is that when the two sections are read together, a purposive or contextual approach to

Ordinary legislation is required. The letter of the law must now, in all cases, be subject to the

(democratic) spirit of the law.

List ten criticisms of the textual approach and briefly explain each.

Criticism of the textual approach are as follows:

 The normative role of the common-law presumptions during the interpretation process is

Reduced to a mere ‘last resort’ to be applied only if the legislative text is ambiguous;
 That words (their literal meaning) are regarded as the primary index to legislative meaning.

According to the court in R v Hildick-Smith 1924 TPD 68 81

There is only one kind of interpretation with one definite object, and that is to ascertain the

True intention of the legislature as expressed in the Act.

 Other important internal and external aids to interpretation, which could be applied to

Establish the meaning of text-in-context are ignored. The context of the legislation is only

Used if the text is not clear.

 The ‘intention of the legislature” is ultimately dependent on how clear the language used

In the legislation may be to the particular court.

 Very few texts are so clear that only one final interpretation is possible. The mere fact that

A discipline such as interpretation of statutes exists would, be implication, suggests that

Legislation is seldom clear and unambiguous.

 The textual approach leaves very little room for judicial law-making, and the courts are

Seen as mere mechanical interpreters of the law. This view creates the impression that
Once the legislature has spoken, the courts cease to have any law-making function.

 According to the textual approach the legislature has enacted everything it wanted to, and

Is aware of the existing law.

 The well known maxims (iudicis est ius dicere sed non dare and casus omissus rule) form

The basis of the general principle that no addition to or subtraction from the legislative text

Is possible. According to the maxim iudicis est ius dicere sed non dareI it is the function

Of the court to interpret and not to make the law.

 The casus omissus rule (courts may not supply omissions in legislation) is also derived

From the principle that the function of the courts is to interpret law and not to make it.

Case law: Ex Parte Slater, Walker Securities (SA) Ltd 1974 (4) SA 657 (W)

Explain why the following judgments are important for the theory and practice of statutory

Interpretation:

i) Public Carriers Association v Toll Road Concessionaries Pty (Ltd)

In this case 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”.

ii) Jaga v Donges

In his famous minority decision in Jaga v Donges Schreiner JA identified the following

Guidelines for interpretation of statutes:

1. Right from the outset the interpreter may take the wider context of provision (eg its

Ambit and purpose) into consideration with the legislative text in question.

2. Irrespective of how clear or unambiguous the grammatical meaning of the

Legislative text may seem to be, the relevant contextual factors (eg the practical

Effects of different interpretations, as well as the background of the provision) must

Be taken into account.

3. Sometimes this wider context may even be more important than the legislative text.
 4. Once the meaning of the text and context (language in context) is determined, it

Must be applied, irrespective of whether the interpreted is of the opinion that the

Legislature intended something else.

iii) Bato Star Fishing Pty (Ltd) v Minister of Environmental Affairs and Tourism

Bato Star confirms that the primary and golden rules of textual interpretation do not

Apply in our law any more. Section 39(2) implies that even where the ordinary meaning

Of the legislation if clear and unambiguous, the interpreter must still try to ascribe the

Meaning to those words that will best promote at least one identifiable value enshrined

In the Bill of Rights. The context in which legislation operates is thus decisive for its

Meaning.

The facts of the Bato Star case:

The case concerned the allocation of quotas in the fishing industry. The amount of

Fish that may be caught by a deep-see fishing trawler is limited by a quota system.
The quota which each trawled is allowed to catch is determined by the Minister of

Environmental Affairs and Tourism in terms of the Marine Living Resources Act 18 of

1998. 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.

The Bato Star fishing company was allocated a quota for the year. However, it

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. How should the phrase “have regard to” be interpreted and
Understood in this case?The Supreme Court answered the question by asking, in a textualist
fashion, what the

Ordinary meaning of the words “have regard to” was. 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 in terms of section 18(5), 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. It claimed 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 word 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.

In his judgment, Ngcaba J expressed concern about the textual method of

Interpretation followed in the Supreme Court of Appeal. He agreed that the ordinary

Meaning of the phrase “have regard to” was “to take into account” but 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. Referring to the minority judgment in

Jaga v Donges with approval, the court made the following statement”

“I accept that the ordinary meaning of the phrase “have regard to” has in the past been

Construed by our courts to mean “bear in mind” or “do not overlook”. However, the

Meaning of that phrase must be determined by the context in which it occurs. In this

Case that context is the statutory commitment to redressing the imbalances of the past,
And more importantly the constitutional commitment to the achievement of equality.

And this means that the phrase as it relates to section 2 must be construed purposively

To “promote the spirit, purport and objects of the Bill of Rights”……. The technique of

Paying attention to context in statutory construction is now required by the Constitution,

In particular section 39(2)…….. I am troubled therefore by an interpretative approach

That pays too much attention to the ordinary language of the words ‘have regard to””.

iv) Heydon’s case

Write a note on the influence of the 1996 Constitution on statutory interpretation (including a

Detailed discussion of the supremacy, foundational and interpretation clauses of the

Constitution).

Since both the interim Constitution (section 35(3)) and the 1996 Constitution (section 39(2))

Included an express and mandatory interpretation provision, statutory interpretation now has to

Be conducted within the value-laden framework of the supreme Constitution which is the highest

Law of the land.Apart from the constitutional values, the interpretation of statutes was
transformed by 6 provisions
Of the Constitution, in particular:

 Section 1 (the foundational provision)

 Section 2 (supremacy of the Constitution)

 Section 7 (the obligation clause)

 Section 8 (the application clause)

 Section 36 (the limitation clause)

 Section 39 (the interpretation clause)

CONSTITUTIONAL SUPREMACY

Section 1 of the Constitution is the foundational clause:

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.

© Supremacy of the constitution and the rule of law.

(c) Universal adult suffrage, a national common votes roll, regular elections and a multi-
party

System of democratic government, to ensure accountability, responsiveness and

Openness.

Section 2 is the constitutional supremacy clause.

THE INTERPRETATION CLAUSE

Section 39(2) of the Constitution (the interpretation of statutes in general) provides:

“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 39(2) is a peremptory provision, which means that all courts, tribunals or forums must

Review the aim and purpose of legislation in the light of the Bill of Rights: plain meanings and
so-

Called clear, unambiguous texts, are no longer sufficient.

Name and discuss the various dimensions of the “practical inclusive method of interpretation”
Favoured by Botha.

Interpretation of statutes is a process, but it is not a predetermined mechanical process consisting

Of mutually exclusive steps based on aspects such the clarity of the text (eg the text-based

Contention that context becomes important only if and when the text seems unclear, and so on).

Botha identifies five aspects of the contextual or purposive approach to statutory interpretation:

1. Words and phrases: the language aspect

This aspect 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,

Punctuation, sentences and other structural components of the text, and on the rules ofsyntax (the
rules dealing with the order of words in a sentence). It merely acknowledges

The importance of the legislative text in the complex process of interpretation.

2. 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 also known as a holistic
Approach and refers to the principle that words, phrases and provisions cannot be read in

Isolation.

3. Teleological interpretation: the value-based aspect

This aspect emphasis fundamental constitutional values and value-coherent

Interpretation. The aim and purpose of the legislation must be ascertained against the

Fundamental constitutional values; in other words, s39(2) of the Constitution.

4. Historical aspect

This method refers to the use of the historical context of the legislation. This historical

Context includes factors such as the circumstances which gave rise to the adoption of the

Legislation (mischief rule) and the legislative history (prior legislation and preceding

Discussions).

5. Comparative aspect
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. This inclusive method of interpretation is not really new or radical. It merely brings

Together all the different aspects or techniques necessary for interpretation: the enacted

Law-text with all the linguistic complexities of grammar, syntax and spelling; the context of

The text, including the relationship of different parts of the text with another, other texts

Outside the legislation (such as the Constitution, other legislation as well as relevant

Surrounding circumstances); the purpose (legislative scheme) of the legislation as well the

Important substantive element of fundamental constitutional values; the historical context

Of the legislation such as the discussions and deliberations preceding the passing of the

Legislation, the mischief rule, explanatory memoranda and policy documents’ and the

Comparative dimension (foreign case law and international law).

CHAPTER 5 – HOW LEGISLATION IS INTERPRETED

THEORIES OF INTERPRETATION
 1. Orthodox text-based approach (AKA: “textualist”)

Primary rule:

If the meaning of the text is clear (the plain meaning), it should be applied & equated with the
legislature’s

Intention
Because ordinary citizens may rely on the everyday meaning of legislation – the courts may not
proceed

Beyond the plain meaning of the text (interpretative questions must first, and as far as possible,
be settled

By the dictionary)

Golden rule:

If the plain meaning of the words is ambiguous / vague / misleading / if a strict literal
interpretation would

Result in absurd results = then the court may deviate from the literal meaning

Court will then turn to the “secondary aids” to interpretation found both in:

Other parts of the legislative text beyond the wording of the specific section in question
(“internal aids”)
Outside the legislative text as a whole (“external aids”)

Only when it’s not clear from the wording of the legislative provision itself what the legislature
intended –

Can the court look at the internal aids contained in the rest of the legislation (the title, long title,
preamble,

Chapter, headings, etc) to determine what the intention of the legislature was

Only where the legislation as a whole still does not provide an answer – can the court consult the
external

Aids (commission reports, parliamentary debates, memorandums)

Only in cases where the language (the primary indicator of legislative meaning) is unclear /
absurd & the

Internal & external aids (the secondary indicators) cannot resolve the uncertainty / absurdity –
then the

Court can turn to a set of CL presumptions (tertiary aids / indicators) to resolve the uncertainty –
in these

Cases court in effect concedes that it cannot determine what the legislature actually intended &
that it will

Therefore make an assumption re what the legislature intended (the CL assumptions are CL
ideals of the
Good legislature that we simply ascribe to our actual legislature in cases of doubt)

Public Carriers Association case:

Recent example of the textual approach & one of the last authoritative statements of the textual
approach

By the AD before intro of the new constitutional order

Judgement also suggested that the purpose of the legislation could solve interpretation problems
as a last

Resort when textual approach could not (i.e. when language / secondary aids & CL presumptions
could not

Resolve the uncertainty / absurdity)

Court thus partially recognised the value of the purposive / text-in-context approach, but
restricted its

Application to cases where textual approach had failed

Case provides a bridge btw old textual approach & new contextual approach & serves as good
example of

Textual approach

Facts:
Portion of N3 was declared a toll road ito National Roads Act

Section 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(s) may be reached” is available to road users

Alternative road overlapped the toll road for 79kms but by-passed all the toll gates, thereby
enabling

Motorists travelling along it to avoid paying toll charges

Association of public road carriers challenged the new toll road on grounds that a proper
“alternative road”

Had not been made available as required ito the Act & claimed that “an alternative road” means
an

Alternative roadway & not an alternative route & argued that for there to be an alternative road,
2

Physically separate roadways must exist for the motorist to choose from & since use of
alternative road

Involved travelling 79 kms along the toll road – it was not an “alternative road” as required

Toll road operators argued that “alternative road” means “an alternative route” = 2 roads (or
routes) are
Alternative roads, even though parts of them are common to both

Judgement:

Court decided in favour of toll road operators –

Applied rules of textual approach & stated that the primary rule is to ascertain the intention of
the

Legislature & held that:Must first give words their ordinary grammatical meaning – unless to do
so would lead to an absurdity so

Glaring that the legislature could not have contemplated it – 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

After consulting a dictionary – court discovered “an alternative route” are not linguistically
limited to a

Single ordinary grammatical meaning as the phrase could mean either “a different roadway” or
“a different

Route” – because both were linguistically feasible the court turned to the secondary aids

Court found that none of the recognised internal / external aids helped to indicate which one of
the 2
Meanings of “road” was intended by the legislature – court then turned to CL presumptions

However – none of the presumptions helped to indicate which of the 2 possible meanings of
“road” we

Should accept as the legislative intention

Textual approach therefore did not provide any solution

Court then decided to look @ the purpose of the provision & held that it must be accepted that
the literal

Interpretation principle is firmly entrenched in our law & court did not seek to challenge it – but
where its

Application results in ambiguity & one seeks to determine which of more than 1 meaning was
intended by

The legislature, one may have regard to the purpose of the provision to achieve such objective

Court stated that purpose of the Act was to ensure that road users who wished to do so could
reach their

Original destination w/o paying the new toll fees – that being the primary object of the Act –
court held that

“an alternative road” meant “an alternative route” and not “an alternative roadway”

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 by-passed the toll gates

Declaration of relevant portion of N3 as a toll road was valid

Criticism against textual approach:

The normative role of the CL presumptions during the interpretation process is reduced to a mere
“last

Resort” to be applied only if the legislative text is ambiguous

Exaggerated emphasis on legislative text = Words (their literal meaning) are regarded as the
primary index

To legislative meaning – however – the main object should be to ascertain the true intention of
the

Legislature

Other NB internal & external aids which could be applied to establish the meaning of text-in-
context are

Ignored = context of legislation is only used if text is not clear – unless textual meaning is
ambiguous /

Unclear, interpreter will not have recourse to the wide range of aids to interpretation at his
disposal = as a
Result, the intention of the legislature is ultimately dependent on how clear the language used in
the

Legislation may be to the particular court

Very few texts are so clear that only 1 final interpretation is possible

Leaves very little room for judicial law-making – courts may only interpret the law & not make
it = courts

Have no law-making capacity re legislation, except in very exceptional cases where courts
deviate from the

Literal meaning of the legislation to apply some sort of corrective interpretation

Prior to 1994 = in the absence of a justiciable BOR under apartheid rule, the clear, plain meaning
of

Obnoxious legislation became the justification for executive-minded decisions by the courts and
was used as

A convenient excuse for avoiding inconvenient moral dilemmas

2. Purposive (Text-in-context) approach (AKA: “contextualist”)

Before 1994 – purposive approach was applied by the courts from time to time

Prevailing factor: Purpose / object of legislation (the legislative scheme)

Context of legislation, including social & political policy directions, is also taken into acc to
establish the

Purpose of the legislation

Mischief rule is the forerunner –

Rule acknowledges application of external aids:

CL prior to enactment of legislation;

Defects in the law not provided for by the CL; and Whatever new remedies the legislature
provides & the true reason for these remedies

To find the purpose of legislation you need to adopt a purpose-orientated approach which
recognises the

Contextual framework of the legislation right from the outset (not only in cases where a literal,
text-based

Approach has failed)

Provides a balance btw grammatical & overall contextual meaning

Interpretation process cannot be complete until the object & scope of the legislation (i.e. its
contextual

Environment) are taken into acc = in this way the flexibilities & peculiarities of language & all
the intra-
Textual & extra-textual factors, are accommodated in the continuing time-frame within which
legislation

Operates

Jaga:

One of the first concrete efforts to utilise the wider context to move beyond the plain
grammatical meaning

To ascertain the legislative purpose – after this case – a few courts were more prepared to
interpret the text

Of legislation in the light of the wider contextual framework

Facts:

In 1950’s Jaga was caught selling unwrought gold & sentenced to 3 months prison suspended for
3 years

The Act read “any person who has been sentenced to imprisonment for any offence committed
by the sale of

Unwrought precious metal & who is deemed by Minister to be an undesirable inhabitant of the
Union, may

Be removed from the Union under a warrant

Minister declared Jaga an undesirable inhabitant of the Union & a warrant for his deportation to
India was

Issued

Jaga challenged his deportation on the basis that he had not been sentenced to imprisonment

Minister argued that a suspended sentence of imprisonment is still as sentence of “imprisonment”

within

The ordinary meaning of the Act

Jaga argued that “imprisonment” mean actual (as opposed to merely potential) imprisonment

“Sentenced to imprisonment” thus meant to be sentenced to be actually & physically held in

prison, which

He was not (his sentence was merely suspended & he was allowed to go home)

Finding:

Majority of court adopted textual approach & held “sentenced to imprisonment” was not further
defined /

Qualified by the legislature – the lain meaning should be determined & applied –
“imprisonment” in plain

Language meant that the sentence imposed on the offender contained a period of imprisonment
(suspended
/ no) as an element – warrant was legally issued as Jaga did receive a sentence of imprisonment

Minority (judge Schreiner) adopted a contextual / purposive approach (this judgment is

extremely NB & has

Been cited with approval by the CC) – held: interpreting words & expressions in light of their
context is just

As NB as eing interpreted acc to their ordinary meaning – 2 NB points in this regard=

1. “the context” as used here is not limited to the language of the rest of the statute & is
regarded as

Throwing light of a dictionary kind on the part to be interpreted (often of more NB is the matter
of the

Statute, its apparent scope & purpose & within the limits, its background

2. The approach to the work of interpreting may be along either of 2 lines –

By splitting the inquiry into 2 parts & concentrating firstly on finding out whether the language
to be

Interpreted has / appears to have one clear ordinary meaning, confining a consideration of the
context only

To cases where the language appears to admit to more than 1 meaning; or

 One may from the beginning consider the context & language to be interpreted together
(minority adopted

This version)

Judge insisted that very few words have a natural / ordinary meaning in the sense that their
meaning is

Entirely independent of the context in which they are used Q is thus what words mean, not only
in the context in which they are used in the legislative text, but also in

The context of the purpose of the legislation & the mischief that it was designed to remedy

Text & context must be balanced, otherwise the context may be given such an exaggerated NB
that the

Language used becomes strained, or otherwise the text may be given such an exaggerated NB
that

Verbalism & consequent failure to further the aims of the legislation might result

Real impact of this judgment = willingness to accept that “sentenced to imprisonment” did have
the clear &

Ordinary meaning which majority claimed it had – even so – Judge insisted the broader context
& purpose of

Legislation overrode that clear meaning – purpose of provision was to create an objective test for
Identification of undesirable persons who should be removed from society by deportation –
however, the

Suspension of prison sentences has the opposite aim – a suspended sentence is a means of
keeping an

Offender within society while aiding his rehab – to included suspended sentences in the meaning
of

“sentence of imprisonment” would not serve the purpose of the legislative provision –
deportation warrant

Was thus illegally issued as Jaga had not been sentenced to imprisonment for the purposes of the
Act

Judge held that even the textual approach, if it was correctly applied, should have led to the same

Conclusion – this criticism of the majority approach sheds light on the inner working & limits of
the textual

Approach –

According to Judge, the ordinary meaning of “sentenced to imprisonment” is ambiguous since it

could not

Mean both “being physically removed to prison” or “being sentenced where the sentence
includes

Imprisonment” – because of this ambiguity the secondary aids had to be applied – since there
were no
Secondary aids available in the case which could resolve the choice btw the 2 meanings, the
tertiary aids

Had to be applied –

One CL presumption is that legislative provisions must be interpreted in favour of individual

freedom – it

Must therefore be presumed that the legislature intended the deportation of persons only where
these

Persons were unconditionally sentenced to imprisonment – to hold otherwise, as the majority

did, would

Subject an unnecessarily large range of offenders to the very drastic nature of deportation – it
would thus

Fail to protect the value of individual freedom

The above criticism ties in closely with some of the criticisms levelled against the textual
approach – NB is

The fact that majority failed to give CL presumption in favour of individual freedom any role in
its judgment

– They simply resolved the case with an appeal to the apparent clarity of the words that
were used by the
Legislator (same as Botha’s criticism) – however the meaning of the words used was not so clear
to the other

Members of the court (also same as Botha’s criticism)

Court provided foll guidelines:

Right from the outset the interpreter may take the wider context of provision (eg its ambit &
purpose) into

Acc with the legislative text in question

Irrespective of how clear / unambiguous the grammatical meaning of the legislative text may
seem to be,

The relevant contextual factors (eg practical effects of different interpretations, as well as the
background of

The provision) must be taken into acc

Sometimes the wider context may even be more important than the legislative text

Once the meaning of the text & context (language in context) is determined, it must be applied,
irrespective

Of whether the interpreter is of the opinion that the legislature intended something else

Judiciary has inherent law-making discretion =

Role of the courts is more flexible & not limited to mere textual analysis & mechanical
application

Discretion is qualified by the prerequisite that modification of the meaning of the text is possible
(and

Admissible) only if & when the scope & purpose of the legislation is clear & supports such
modification

This law-making function is not an infringement of the legislature’s legislative function – it’s
merely a logical

Extension of the powers of the court during the interpretation & application of legislation in each
practical

Instance

Use of CL presumptions as well as various aids of interpretation, are very NB tools in the quest
for the scope

& purpose of legislation 3. The influence of the supreme Constitution

Since 27 April 1994 the debate re a text-based approach versus a text-in-context approach to
statutory

Interpretation has become irrelevant

S39(2) of Const = statutory interpretation has to be conducted within the value-laden framework
of the
Supreme Const which is the highest law of the land

In addition to S39(2), interpretation of statues was transformed by 6 provisions of the Const:

1. S1 (Foundational clause):

RSA is one, sovereign, democratic state founded on the foll values:

(a) Human dignity, achievement of equality & advancement of human rights &
freedoms

(b) Non-racialism & non-sexism

© supremacy of the const & the rule of law

(c) Universal adult suffrage, a national common voters roll, regular elections & a
multi-party system of

Democratic government, to ensure accountability, responsiveness & openness

2. S2 (supremacy of the Const):

Const is supreme law of RSA – law / conduct inconsistent with it is invalid & the obligations
imposed by it

Must be fulfilled
 3. S7 (Obligation clause):

BOR is the cornerstone of SA democracy – state must respect, protect, promote & fulfil the
rights in the BOR

4. S8(application clause):

S8(1) = BOR applies to all law & binds legislature, executive, judiciary & all organs of state

S8(2) = BOR applies to natural & juristic persons

(s237 also states that all const obligations must be performed diligently & w/o delay)

If all these provisions are read together one principle is indisputable – the Const is supreme &
everything &

Everybody are subject to it =

Const cannot be interpreted in light of the Interpretation Act / RD CL / traditional customary law
–

Everything & everybody, all law & conduct, all cultural traditions & legal dogmas & religious
perceptions, all

Rules & procedures, and all theories, canons & maxims of interpretation are influenced &
ultimately

Qualified by the Const

 5. S36 (the limitation clause)

6. S39 (interpretation of statues):

S39(1) deals with interpretation of BOR – however, this section is also relevant to the
interpretation of

Ordinary legislation for the following reasons:

Provides that BOR should be interpreted in light of foundational provisions of our open &
democratic

Constitutional order = those democratic values are found in the preamble to the Const & par 1 –
once could

Say these democratic values reflect the spirit of the BOR – however, s39(1) says nothing directly
re

Interpretation of ordinary legislation – however, s39(2) says that the spirit of the BOR must be
promoted

When ordinary legislation is interpreted – in order to understand what the spirit of BOR is, we
thus have to

Turn to s39(1) when interpreting ordinary legislation = when the 2 sections are read together, a
purposive /

Contextual approach to ordinary legislation is required – the letter of the law must now, in all
cases, be
Subject to the democratic spirit of the law
S39(2) deals with interpretation of legislation other than the BOR – provides that when
interpreting any

Legislation & when developing the CL / customary law – every court, tribunal / forum must
promote the

Spirit, purport & objects of the BOR

Const does not expressly prescribe a contextual (purposive) approach to statutory interpretation –
however,

S39(2) is a peremptory provision = all courts, tribunals & forums must review the aim & purpose
of

Legislation in light of BOR – plain meanings & so called clear, unambiguous texts are no longer
sufficient

Even before a legislative text is read – s39(2) forces the interpreter to promote the values &
objects of the

BOR

All the above means that the interpreter is consulting extra-textual factors before the legislative
text is even

Considered = factors & circumstances outside the legislative text are immediately involved in the
Interpretation process =

The interpretation of statutes starts with the Const & not with the legislative text

Bato case:

Facts:

Concerned the allocation of quotas in the fishing industry – amt of fish that may be caught by a
deep-sea

Fishing trawler is limited by way of a quota system

The quota which each trawler is allowed to catch is determined by the Minister of Environmental
Affairs and

Tourism ito the Marine Living Resources Act – s2 of the Act list the objectives of the Act,
including to achieve

Sustainable development, to further biodiversity & to restructure the fishing industry in order to
achieve

Equity – state that the Minister must “have regard to” these objectives when he allocates quotas

S18(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 s2

Bato was allocated a quota for 1 year – it complained the quota was too small & approached
court to have

Allocation set aside – case turned on Q whether Minister did “have regard to” the objective of
achieving

Equity in the fishing industry

SCA asked what the ordinary meaning of “have regard to” was – court looked at way phrase has
been

Applied by courts which made it clear that it mean no more than “taking into consideration” /
“taking into

Account” / “not to overlook”

This meant that when granting quotas – Minister had to take principle of equity into
consideration, but did

Not have to make it his special concern

Clear form the facts that Minister took need to transform fishing industry into account when
quotas were

Allocated – quotas were therefore validly allocated

Bato appealed to CC claiming that the SCA had interpreted “have regard to” incorrectly – argued
that “had
Regard to” equity not only meant equity should be “taken into account” (as ordinary meaning of
words

Suggest) but that equity should be “promoted as the overriding concern” = this alternative
meaning is

Suggested by the context in which phrase operates – CC agreed

CC expressed concern about the textual method of interpretation followed in SCA – agreed that
ordinary

Meaning of “have regard to” was “to take into account” but insisted that it is no longer the
ordinary

Meaning of words that must be applied, but that purpose of legislation & values of the Const –
referred to

Minority judgement in Jaga with approval & held that meaning of phrase must be determined by
context in

Which it occurs – context is the statutory commitment to redressing the imbalances of the past &
const

Commitment to achieving equality

Phrase must be construed purposively to promote the spirit, purport & object of the BOR –
technique of

Paying attention to context in statutory construction is now required by the Const, in particular,
s39(2) –
Court held further it is troubled by any interpretative approach that pays too much attention to
the ordinary

Language of “have regard to”

Confirmed the primary & golden rules of textual interpretation do not apply in our law any more

CC held that the Const is the starting point in interpreting any legislation:
First – the interpretation that is placed upon the statute must, where possible, be one that would
advance at

Least an identifiable value enshrined in the BOR; and

Second – the statute must be capable of such interpretation

The emerging trend in statutory construction is to have regard to the context in which the words
occur, even

Where the words to be construed are clear & unambiguous

Hyundai case:

Judge explained const foundation of this “new” interpretation methodology & held:

S39(2) means that all statutes must be interpreted through the prism of the BOR – all law-making
authority
Must be exercised in acc with the const – the const is located in a history which involves a
transition from a

Society based on division, injustice & exclusion from the democratic process to one which
respects the

Dignity of all citizens, and includes all in the process of governance – as such, the process of
interpreting the

Const must recognise the context in which we find ourselves & the Const goal of a society based
on

Democratic values, social justice & fundamental human rights – this spirit of transition &
transformation

Characterises the const enterprise as a whole

Constitutional values:

3 core values on which Const rests: (1) freedom; (2) equality; and (3) human dignity

Spirit, purport & objects of BOR have to be promoted during the process of statutory
interpretation =

Courts are guardians & enforcers of values underlying the Const

Courts will have to make certain value judgments during the interpretation & application of all
legislation
Interpretation of legislation is an exercise in balancing conflicting values & rights – this is
because the values

Underlying the Const are not absolute

Interpretation of statutes can no longer be a mechanical reiteration of what was supposedly

“intended” by

Parliament – but is rather what is permitted by the Const

Impact of constitutionalism:

A constitutional state (which has a supreme const) is underpinned by 2 foundations:

1. Formal (institutional power map of the country – i.e. separation of powers / checks &
balances on the

Government / principle of legality)

2. Material / Substantive (state bound by a system of fundamental values such as justice &
equality)

Makwanyane case:

Const retains from the past only what is defendable & represents a decisive break from, and a
ringing

Rejection of, that part of the past which is disgracefully racist, authoritarian (strict / severe),
insular (narrow-
Minded), and repressive & a vigorous identification of & commitment to a democratic,
universalistic, caring

& which aspires towards something of a democratic character, expressly articulated in the Const

Although the Const does not expressly refer to a constitutional state, the foll provisions imply a

Constitutional state:

Preamble refers to a society based on democratic values, social justice & fundamental human
rights

S1 states that SA is a democratic state founded on the supremacy of the Const & the rule of law

S7 entrenches the BOR as the cornerstone of the democracy

Const is a value-laden document that is underpinned by a number of express & implied values &
norms –

These fundamental principles are the ideals to which SA society has committed itself & form the
material

(substantive) guidelines which must regulate all the activities of the state – the spirit of the BOR
is a

Reflection of these fundamental principles

These values are also found in various sources – i.e.

Principles of international human rights law & foreign case law re similar constitutions

African concept of Ubuntu

Our CL heritage

Quzeleni case:

Judge explained the demands of the supreme Const on statutory interpretation –

For the Const to fulfil its purpose it needs to become, as far as possible, a living document, and
its contents a

Way of thinking, for all citizens of this country

Establishment of a culture of constitutionality can hardly succeed if the Const is not applied daily
in our

Courts, from the highest to the lowest

3. Practical, inclusive method of interpretation

6 practical interrelated techniques for constitutional interpretation – form the basis of a

practical, inclusive
7
method of interpretation (developed by Du Plessis)

This method of interpretation is not really new / radical – it merely brings together all the
different aspects /
Techniques necessary for interpretation

Not just another template for a mechanical application of words & phrases with passing
reference to values

& context – rather it is:

A total, integrated framework with which (and within which) interpretation of statutes as a
process should

Take place; and

A practical, all-encompassing methodology to deal with complexities & nuances (degrees) of

statutory

Interpretation

The components listed below are complementary & interrelated, and should be applied in
conjunction with

One another:

1. Words & phrases: the language aspect:

Focuses on linguistic & grammatical meaning of words, phrases, punctuation, sentences & other
structural

Components of the text & on the rules re order of words in a sentence

Does not imply a return to literalism & orthodox text-based interpretation – it merely
acknowledges the NB

Of the legislative text in the complex process of interpretation

2. Structure & context: the systematic aspect

Concerned with clarification of the meaning of a particular legislative provision in relation to the
legislative

Text as a whole

AKA “holistic approach” = words, phrases & provisions cannot be read in isolation

Emphasis on “wholeness” is not restricted to the other provisions & parts of the legislation, but
also takes

Into acc all other contextual considerations (i.e. social & political environments) in which
legislation

Operates

3. Teleological interpretation: the value-based aspect:

Emphasises fundamental const values & value-coherent interpretation

Aim & purpose of legislation must be ascertained against the fundamental const values (i.e.
s39(2))
Fundamental values in Const form foundation of a normative, value-laden jurisprudence during
which

Legislation & actions are evaluated against (and filtered through) those const values

4. Historical aspect:

Refers to use of historical context of legislation

Includes factors such as the circumstances which gave rise to adoption of legislation (mischief
rule) &

Legislative history (prior legislation & preceding discussions)

Historical perspective cannot be decisive on its own

5. Comparative aspect:

The process (if possible & necessary) during which court examines interpretation of similar
legislation by

Foreign courts, as well as international law

CHAPTER 6
A practical, inclusive methodology: The five
interrelated dimensions of interpretation
CONTENTS Chapter6
6.1 THE LANGUAGE DIMENSION 41
6.1.1 Basic principles 41
6.1.2 Internal language aids to interpretation 42
6.1.3 External language aids to interpretation 43
6.2 THE HOLISTIC APPROACH (BALANCE BETWEEN TEXT
AND CONTEXT) 44
6.2.1 Legislation must be read as a whole 44
6.2.2 Balance between text and context 44
6.2.3 Structure of legislation 45
6.2.4 Conflicting legislation 45
6.3 THE TELEOLOGICAL DIMENSION 46
6.3.1 The new constitutional approach to statutory
interpretation 46
6.3.2 Ubuntu 46
6.4 THE HISTORICAL DIMENSION 46
6.5 THE COMPARATIVE DIMENSION 47
6.6 IMPORTANT ADDITIONAL PRESCRIBED CASE LAW 47
What will we study in this chapter?
After having worked through this chapter, you should be able to
1. set out and explain the rules and principles that apply to the initial or first
reading of the legislative text
2. identify all the internal and external aids to statutory interpretation
3. explain how each of the internal and external aids to interpretation can be
used to determine the purpose of legislation
4. explain and apply the basic provisions of the Interpretation Act dealing with
the computation of time
6. discuss common law presumptions as an external aid to interpretation
Although a recurring theme in Botha’s textbook is that the Constitution prescribes
A “contextual approach” to interpretation, this does not mean that the legislative

Text is not the starting point of interpretation. It only means that the text is no

Longer the point where interpretation ends. The process of interpretation begins

With the reading of the text to establish its initial meaning. A number of basic rules

And principles apply to the initial or first reading of the legislative text. These rules

And principles are studied in this chapter. Botha states that the text must be

Balanced against its context. The purpose of legislation in society forms an

Essential part of that context. One of the matters we study in this chapter is when

The purpose of legislation must be consulted in the interpretive process. We also

Study which internal aids, external aids, provisions of the Interpretation Act 33 of

1957 and common law presumptions must be used to establish the purpose of

Legislation.

What are the central questions to be answered?

We are all familiar with a large range of texts in everyday life. We regularly read

Newspapers, magazines, e-mails, SMS messages, advertisements, contracts and so

Forth. Without thinking about it, we apply a number of rules and principles to the

Reading of texts in everyday life. We know that we must “be aware of the fine

Print” in a contract, that we must often “read between the lines” when we receive

Personal e-mail or SMS messages, or that we must “look for the catch” in special

Holiday offers. Lawyers also read everyday texts and apply everyday principles of

Interpretation. However, they spend a great deal of their time reading and talking

About legislative texts.

How does the reading of a legislative text differ from the reading of everyday texts?

What are the specific rules and principles that lawyers apply when they read a piece

Of legislation for the first time? For example, when a piece of legislation dating

Back to the 17th century refers to a “vehicle”, must that term be given the very

Limited meaning that it had in the 17th century (as we do when we read a
Shakespearian play) or must it be given its modern, updated meaning? Similarly, can

One read only that part of an Act in which the specific provision you are interested

In appears, without also reading the rest of the Act (as we frequently do with

Newspapers)? Lastly, must we assume that legislation always remains applicable in

Spite of changed circumstances, or can we accept that it has a limited time-span,

Just as everyday advertisements do?

6.1 THE LANGUAGE DIMENSION

6.2
6.1.1 Basic principles

Botha identifies four rules or principles applicable to the first reading of the

Legislative text (some of these principles have one or two subprinciples). Summarise

And study these principles and subprinciples in one or two sentences each. (For

Example: every word must be given a meaning, words must be given their ordinary

Meaning, technical words must be given their technical meaning, and so forth.)
Chapter 6

A practical, inclusive methodology:

The five interrelated dimensions of

Interpretation

6.1 The language dimension

6.1.1 Basic principles

(a) The initial meaning of the text

The text-based approach no longer has any place in statutory

Interpretation. Of course the reading of the text is necessary,

But, as has been pointed out, the legislation as a whole and

Its context play an equally important role in the

Interpretation process. It also has to be borne in mind that

The purpose of the legislation will still qualify the meaning of

The text. The basic language principles about the meaning of

The text may therefore be regarded as, at best, initial and

Merely tentative rules. In the final instance, it is the purpose

Of the legislation, viewed against the fundamental rights

Contained in the Constitution, which will qualify the meaning

Of the text.

The interpretation process begins with the reading of the

Legislation concerned. The ordinary meaning must be

Attached to the words (Union Government v Mack (above)).

Most readers will agree that this is a pretty standard starting

Point for reading a text. Unfortunately, what was once a

Basic principle of language was subsequently elevated to the

Primary

Rule of interpretation. For example, in Volschenk v Volschenk

1946 TPD 486, it was held that the most important rule of

Interpretation was to give words their ordinary, literal

Meaning. In Sigcau v Sigcau 1941 CPD 334 the court argued

That ‘ordinary meaning’ includes the ordinary grammatical

Meaning. Furthermore, in Association of Amusement and

Novelty Machine Operators v Minister of Justice 1980 (2) SA

636 (A) the court held that ‘ordinary meaning’ means

Colloquial (everyday conversational) speech.

Remember, the principle that the ordinary meaning should

Be given to the words of the legislation is only the starting

Point of the interpretation process. It means that the

Interpreter should not attach an artificial (strained or

Unnatural) meaning to the text. However, the context of the

Legislation, including all the factors both inside and outside

The text, which could influence and qualify the initial

Meaning of the provision, has to be taken into account right

From the outset. In the case of technical legislation dealing

With a specific trade or profession, words that have a specific

Technical meaning in that field which is different from the

Ordinary colloquial meaning have to be given that specialised

Meaning (Kommissaris van Doeane en Aksyns v Mincer

Motors 1959 (1) SA 114 (A)).

(b) Every word is important

The principle that a meaning has to be assigned to every

Word derives from the rule that words are to be understood

According to their ordinary meaning. Strictly speaking, this is

A principle which applies when any text is read. Legislation

Should be interpreted in such a way that no word or sentence

Is regarded as redundant (superfluous or unnecessary). In

Keyter v Minister of Agriculture 1908 NLR 522, it was pointed

Out that the court’s function is to give effect to every word,unless it is absolutely essential to
regard it as unwritten. In

Practice, however, a court will not easily decide that words

Contained in legislation are superfluous (Commissioner for

Inland Revenue v Golden Dumps (Pty) Ltd 1993 (4) SA 110

(A)).

Sometimes, however, it is impossible to assign a meaning

To every word in a statute, as tautological (unnecessarily

Repetitive) provisions are often added as a result of excessive

Caution (ex abundanti cautela). Overlapping and repetition

Often occur, because the drafters of legislation are

Overcautious in guarding against anything important being

Omitted. The resulting redundancy may be ignored in the

Interpretation of a clause (R v Herman 1937 AD 168). Steyn

(1981: 20) points out

Page 113

That if superfluous words help to ascertain the meaning of

Other words, they are not really unwanted and the provision

Should be read as a whole in order to obtain the meaning. In

Secretary for Inland Revenue v Somers Vine 1968 (2) SA

138 (A), the court stated clearly that the principle that a

Meaning should be assigned to every word is not absolute.

This is correct, because the purpose of the legislation should

Be the deciding factor in determining whether a word is

Superfluous or not. This principle is also related to the

Presumption that legislation does not contain futile or

Nugatory provisions (see 6.2.4 below).

© No addition or subtraction

It is a basic rule of interpretation that there may be no

Additions to or subtractions from the words used in the

Legislation. This is a default setting, based on the separation

Of powers principle. However, this is only a basic default

Principle, because in the final analysis, the purpose of thelegislation is the qualifier of the
meaning of the text.

Unfortunately, the courts have elevated this principle to

Another so-called ‘primary rule’. For all practical purposes, it

Is sufficient to know that the courts may not supply

Omissions in legislation at will. If, however, the purpose of

The legislation is clear, the court is the last link in the

Legislative process, and should (according to Labuschagne

(1985: 60)) ensure that the legislative process reaches a

Just and meaningful conclusion. (This aspect of interpretation

Will be discussed in greater detail in Chapter 7 below.)

(c) The continuing time-frame of legislation: the law

Is always speaking

If words bear their ordinary meaning—initially at least—the

Question is whether words in existing legislation should

Interpreted according to their present-day meaning, or

Whether they should retain the meaning they had when the

Legislation was passed. Cowen (1980: 391) questioned the

Principle that words should retain their original meaning: it

Indicates a tendency to glance over one’s shoulder, based on

An incorrect reconstruction of an historical legislature’s

Thoughts (the original intent principle), and negates the

Future-oriented frame of reference of legislation.

Initially the courts followed the general rule. In Finbro

Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein 1985

(5) SA 773 (A), the Appellate Division held that unless later

Legislation expressly provided otherwise, words in legislation

Page 114

Had to be construed according to their meaning on the day

On which the legislation was adopted. This judgment was

Confirmed in Minister of Water Affairs and Forestry v

Swissborough Diamond Mines (Pty) Ltd 1999 (2) SA 345 (T):

The intention of the legislature had to be determined in viewof the meaning of the provision at
the time when it was
Enacted.

However, it would seem that the courts might in future be

Less rigid. In Golden China TV Game Centre v Nintendo Co

Ltd 1997 (1) SA 405 (A) it was held that the general scheme

(purpose) of an Act suggested that the definitions in that Act

Were to be interpreted flexibly in order to deal with new

Technologies on a continuous basis, rather than to interpret

The provisions narrowly, forcing the legislature periodically to

Update the Act. In Fourie v Minister of Home Affairs 2005 (3)

SA 429 (SCA) paras 136-137 Farlam JA (albeit in a minority

Judgment) refers to a presumption of updating

Interpretation: an updated interpretation should be given to

‘ongoing Acts’ (legislation that will continue to apply in the

Future), except in the case of those rare statutes intended to

Be of unchanging effect (so-called ‘fixed-time Acts’).

When considering this continuing time-frame of legislation

It must be borne in mind that all legislation has to be

Interpreted so as to promote the spirit and scope of the Bill

Of Rights, but that a supreme constitution is not a static

Document, nor are the values underpinning it static. In

Nyamakazi v President of Bophuthatswana 1992 (4) SA 540

(BGD) 567H Friedman J stated that a supreme constitution

Must be interpreted in the context and setting existing at the

Time when a case is heard, and not when the legislation was

Passed, otherwise the growth of society will not be taken into

Account:

These are the objectives of the rights contained therein, the circumstances
Operating at the time when the interpretation has to be determined, the

Future implications of the construction, the impact of the said construction on

Future generations, the taking into account of new developments and changes

In society.

In Baloro v University of Bophuthatswana 1995 (4) SA 197

(B) 241B Friedman J once again explained this constitutional

Dynamic (emphasis added):

This Constitution has a dynamic tension because its aims and purport are tometamorphose South
African society in accordance with the aims and objects

Of the Constitution. In this regard it cannot be viewed as an inert and

Stagnant

Page 115

Document. It has its own inner dynamism, and the Courts are charged with

Effecting and generating changes.

However, an enactment cannot automatically be

Reinterpreted to keep up with the winds of change in society.

The rule of law principle means that courts will always need

To balance the dimension of futurity with legality issues such

As offences, penalties and vested rights, as well with legal

Certainty.
6.1.2 Internal language aids to interpretation

Legislation comprises different components (look at the example in chapter 2 to

Refresh your memory). These are: the same legislative text in another official

Language, the preamble, the long title, the definition clause, legislative purpose

Statements and interpretation guidelines, headings to chapters and sections,

Paragraphing and punctuation, and schedules. Botha discusses each of these

Components in turn. You must be able to identify, list and discuss the value of each

Of these components during the interpretive process.

Tip

Go and look at a number of specific Acts. Practise your ability to find these

Internal aids within the legislative text.

6.1.2 Internal language aids to interpretation

(a) The legislative text in another official language

Prior to the commencement of the interim Constitution,

Legislation in South Africa was drafted in two official

Languages, and the text in the other language was used to

Clarify obscurities. Devenish (1992: 144) refers to this as

‘statutory bilingualism’.

Original legislation

The signing of legislation is part of the prescribed procedure

During the passing of original legislation. Old order legislative

Texts were signed alternately (in turn) in the languages in

Which they were drafted, and the signed text was enrolled for

Record at the Appellate Division. In case of an irreconcilable

Conflict between the various legislative texts, the signed one

Prevailed. This principle was expressly included in the 1961

And 1983 Constitutions, as well as in the interim

Constitution. The 1996 Constitution does not refer to

Irreconcilable conflicts between texts of other legislation. In

Du Plessis v De Klerk (above) para 44 the Constitutional

Court referred, with apparent approval, to the existing legal position regarding conflicting
versions of the same legislative

Text. In terms of item 27 of Schedule 6, these provisions do

Not affect the safekeeping of legislation passed before the

1996 Constitution came into operation. It should also be

Noted that s 126 of the Constitution (‘Publication of

Municipal by-laws’) does not mention the signing of new

Municipal legislation.

With regard to the 1996 Constitution itself, s 240 of the

Constitution states that the English text will prevail in the

Event of any inconsistency between the different texts. The

Constitution also provides (ss 82 and 124) that the versions

Of all new national and provincial legislation which have been

Signed by the President or a provincial premier respectively,

Has to be entrusted to the Constitutional Court for

Safekeeping. The signed version will be conclusive evidence

Of the provisions of that legislation.

Page 116

The signed version of the legislative text does not carry

More weight simply because that is the one which was

Signed:

The signed version is conclusive only when there is an

Irreconcilable conflict between the versions (Handel v R 1933

SWA 37). In other words, the signed version is used as a last

Resort to avoid a stalemate.

If the one version of the text is wider than the other

(eg one version prescribes a penalty of imprisonment and a

Fine, and the other only a fine), then the common-

Denominator rule is followed, and only a fine will be imposed.

The texts are read together to establish the common

Denominator (Jaffer v Parow Village Management Board 1920

CPD 267).

If the versions differ but there is no conflict, the

Versions complement one another and they have to be read

Together. An attempt should be made to reconcile the texts with reference to the context and the
purpose of the

Legislation (Zulu v Van Rensburg 1996 (4) SA 1236 (LC)).

Even the unsigned version of the legislative text may

Be used to determine the intention of the legislature

(Commissioner of Inland Revenue v Witwatersrand

Association of Racing Clubs 1960 (3) SA 291 (A) 302A–B).

Because statutes are signed using alternate languages,

Amendment Acts may create a problem. Suppose the

Afrikaans version of a statute was signed but the English

Version of the amendment Act was signed. Which one of the

Signed versions of the amendment Act will prevail in case of

An irreconcilable conflict? There are conflicting answers to

This question, but the most acceptable solution was put

Forward in R v Silinga 1957 (3) SA 354 (A). The court

Suggested that the amendment Act be regarded as part of

The original statute. The version of the statute signed

Originally will prevail in the case of an irreconcilable conflict.

Subordinate legislation

There are no statutory or constitutional rules about

Conflicting language versions of subordinate legislation. In

Practice all the versions of subordinate legislation will be

Signed, and the signed text cannot be relied on to resolve

Conflicts between texts. If the texts do differ, they must be

Read together (Du Plessis v Southern Zululand Rural

Licensing Board 1964 (4) SA 168 (D)). If there is an

Irreconcilable conflict between the various texts, the court

Will give preference to the one that benefits the person

Concerned (Bolnik v Chairman of the Board appointed by the

SA Council of Architects 1982 (2) SA 397 ©).

Page 117

This approach is based on the presumption that the

Legislature does not intend legislation that is futile or

Nugatory (R v Shoolman 1937 CPD 183). If the irreconcilableconflict leads to subordinate

legislation that is vague and

Unclear, the court may declare it invalid (Kock v Scottburgh

Town Council 1957 (1) SA 213 (D)).Of course, the rules explained above will apply to old order

Legislation. If the existing Act was published in, say,

Afrikaans and English, all future amendment Acts will still

Have to be adopted and published in Afrikaans and English

(because those amendments will eventually be incorporatedinto the Act). Furthermore, in theory
at least, subordinate

Legislation issued in terms of an enabling Act originally

Published in Afrikaans and English will also need to be in

Afrikaans and English.

However, South Africa now has 11 official languages. For a

Number of practical reasons the legislation cannot be

Promulgated in all 11 languages. Since 1998 new Acts of

Parliament have been promulgated only in English. Section

59(1)(a) of the Constitution obliges Parliament to ‘facilitate

Public involvement in the legislative and other processes’.

One way of doing that is to publish translations of Bills

Introduced in

Page 118
Parliament. In addition, the Joint Rules of Parliament require

That a translated version of a Bill that has been adopted must

Be submitted together with the Bill to be signed into law. In

Practical terms this means that new Acts of Parliament are

Promulgated only in English.

(b) The preamble

Although old order legislation with a preamble is rare, some

Private Acts, the new generation public Acts (eg the South

African Schools Act 84 of 1996) and the Constitution have

Preambles. The preamble usually contains a programme of

Action or a declaration of intent with regard to the broad

Principles contained in the particular statute. Preambles tend

To be programmatic and couched in general terms, but they

May be used during interpretation of legislation since the

Text as a whole should be read in its context. Although a

Preamble on its own can never provide the final meaning of

The legislative text, post-1994 preambles should provide the

Interpreter with a starting point—it is the key that unlocks

The first door in the process of statutory interpretation.In Jaga v Dönges (above) Schreiner JA
considered the

Preamble to be part of the context of the statute. In a

Number of recent cases (eg Qozeleni v Minister of Law and

Order (above) 79D-E and Khala v The Minister of Safety and

Security 1994 (4) SA 218 (W) 221) the courts acknowledged

The unqualified application of the Constitution’s preamble. In

National Director of Public Prosecutions v Seevnarayan 2003

(2) SA 178 © 194 the court rejected the argument that a

Preamble may be considered only if the text of the legislation

Is not clear and ambiguous as an outdated approach to

Interpretation.

© The long title

The long title provides a short description of the subject

Matter of the legislation (see also the example of an Act in

Chapter 2). It forms part of the statute considered by the

Legislature during the legislative process. The role played by

The long title in helping to ascertain the purpose of the

Legislation will in each case depend on the information it

Contains. The courts are entitled to refer to the long title of a

Statute to establish the purpose of the legislation (Bhyat v

Commissioner for Immigration (above)).

Page 119
 (c) The definition clause

Almost all statutes contain a definition clause. This is an

Explanatory list of terms in which certain words or phrases

Used in the legislation are defined (see also the example of

An Act in Chapter 2 (above)). A definition section is an

Internal dictionary for that Act only—the definition section

Always starts with the phrase ‘In this Act, unless the context

Indicates otherwise . . .’.

A definition in the definition section is conclusive, unless

The context in which the word appears in the legislationindicates another meaning. In that case,
the court will follow

The ordinary meaning of the word (Brown v Cape Divisional

Council 1979 (1) SA 589 (A)). In Kanhym Bpk v Oudtshoorn

Municipality 1990 (3) SA 252 © it was held that a deviation

From the meaning in the definition clause will be justified

Only if the defined meaning is not the correct interpretation

Within the context of the particular provision.(e) Express purpose clauses and interpretation

Guidelines

While a preamble is formulated in wide and general terms,

And the long title is nothing more than a summary of the

Contents of an Act, the express purpose clause and

Interpretation guidelines contain more detail and are more

Focused, and should be more valuable during the

Interpretation process. However, by itself none of them can

Be decisive. To take such a view would merely create a new

And sophisticated version of text-based interpretation. The

Interpreter must still analyse the legislative text (as a whole)

Together with all internal and external aids.

Examples of a purpose clause and interpretation guidelines

Are ss 1 and 3 of the Labour Relations Act:

1 Purpose of this Act.

The purpose of this Act is to advance economic development, social

Justice, labour peace and the democratisation of the workplace by fulfilling the

Primary objects of this Act, which are—

To give effect to and regulate the fundamental rights conferred by

Section 27 of the Constitution;

To give effect to obligations incurred by the Republic as a member

State of the International Labour Organisation;

To provide a framework within which employees and their trade

Unions, employers and employers’ organisations can—

Collectively bargain to determine wages, terms andconditions of employment and other matters
of mutual interest;
And

Formulate industrial policy; and

To promote—

Orderly collective bargaining;

Collective bargaining at sectoral level;

Employee participation in decision-making in the workplace;

And

The effective resolution of labour disputes.

Page 121

3 Interpretation of this Act

Any person applying this Act must interpret its provisions—

To give effect to its primary objects;

In compliance with the Constitution; and

In compliance with the public international law obligations of the

Republic.

(f) Headings to chapters and sections

Headings to chapters or sections may be regarded as

Introductions to those chapters or sections. Within the

Framework of text-in-context, headings may be used to

Determine the purpose of the legislation. In the past the

Courts held the literal viewpoint that headings may be used

By the courts to establish the purpose of the legislation only

When the rest of the provision is not clear (Chotabhai v

Union Government 1911 AD 24). In Turffontein Estates v

Mining Commissioner Johannesburg 1917 AD 419 the court

Pointed out that the value attached to headings will depend

On the circumstances of each case.

(g) Schedules

Schedules serve to shorten and simplify the content matter

Of sections in legislation. The value of a schedule during

Interpretation depends on the nature of the schedule, its

Relation to the rest of the legislation, and the language in

Which the legislation refers to it. The general rule is that

Schedules, which expound sections of an Act, should have the

Same force of law as a section in the main Act. An example of

A schedule is Schedule 1 of the Constitution (which contains

The description of the national flag). It should be clear that

Schedules have to be consulted when interpreting provisions

In the main part of the Act.

In the case of conflict between the schedule and a section

In the main legislation, the section prevails (African and

European Investment Co v Warren 1924 AD 360). One

Notable exception to this rule was s 232(4) of the 1993

Constitution, which stated that for all purposes the schedules

Were deemed to form part of the substance of the 1993

Constitution. In certain cases the particular schedule will

State that it is not part of the Act and that it does not have

The force of law, in which case it is an external aid and it may

Be considered as part of the context. An example of this is

Schedule 4 of the Labour Relations Act, which consists of flow

Diagrams which explain the procedures for dispute resolution

Set out in the Act.

As was pointed out in Chapter 2, the names and types of

Legislation can be confusing. Sometimes a schedule is a type

Of subordinate legislation, and not a part of the Act (as

Primary legislation). For example, s 207 of the Labour

Relations Act empowers the Minister of Labour—after

Consultation with NEDLAC—to change, add to or replace

Certain schedules in the Act by notice in the Government

Gazette.
ACTIVITY 6.1

The following questions are based on the National Education Policy Act 27 of 1996. Look at

The excerpt and answer the questions:

1. Identify the long title of the Act, and explain why the long title is important for statutory

Interpretation.

2. Which version of this Act will be used should there be an irreconcilable conflict be-

Tween the English and Afrikaans versions of the Act?

3. When did the National Education Policy Act 27 of 1996 come into force?
FEEDBACK

1. The long title of the Act starts with “To provide for the determination of national policy

For education: to amend …. And to provide for matters connected therewith”.

2. The long title contains a short description of the contents of the Act. It forms part of the

Legislation, which was considered by the legislature during the legislative process. Its

Value will depend on the information it contains. In Bhyat v Commissioner for Immigra-

Tion it was decided that it may be considered to establish the purpose of the

Legislation.

3. The Afrikaans version of the Act will prevail. The signed version is only conclusive

When there is an irreconcilable conflict between the versions. See Handel v R in your

Prescribed textbook.

4. 24 April 1996

6.1.3 External language aids to interpretation

The interpreter, when construing a statute, could also use external aids to
Interpretation. These are the Constitution, preceding discussions, surrounding circumstances,
dictionaries and linguistic evidence, the source of a provision, the

Interpretation Act and other common-law presumptions.

6.1.3 External language aids to interpretation

(a) Dictionaries and linguistic evidence

In an era in which legislation is becoming ever more

Technical and highly specialised, courts often use dictionaries

During interpretation. In Transvaal Consolidated Land and

Exploration Co Ltd v Johannesburg City Council 1972 (1) SA

88 (W) 94G the court used dictionaries in a contextual

Framework:

Dictionary definitions serve to mark out the scope of the meanings available

For a word, but the task remains of ascertaining the particular meaning and

Sense of the language intended in the context of the statute under

Consideration.

In De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka

1980 (2) SA 191 (T) the court reiterated that the meaning of

A word cannot be determined conclusively by its dictionary

Meaning. The dictionary meaning is only a guideline. A

Dictionary cannot prescribe which of several possible

Meanings of a particular word should prevail—the context in

Which a word is used should be the decisive factor. In

Fundstrust (Pty) Ltd (in liquidation) v Van Deventer 1997 (1)

SA 710 (A) the court reiterated that the use of authoritative

Dictionaries is a permissible and helpful method available to

The courts during interpretation of statutes. However,

Interpretation of statutes cannot be done by ‘excessive

Peering at the language to be interpreted without sufficient

Attention to the contextual scene’. After all, the interpreter

Has to ascertain the meaning of words or expressions in the

Particular context of the statute in which it appears.In Association of Amusement and Novelty
Machine Operators

V Minister of Justice (above) the meaning of the word ‘pin-

Tables’ was in dispute. The court held that the testimony of

Language experts was not admissible as an aid in construing

Legislation. In the same vein, in Metro Transport (Pty) Ltd v

National Transport Commission 1981 (3) SA 114 (W) the

Court decided that supplementary linguistic evidence to

Interpret a statutory provision was not admissible.

(b) Examples and footnotes

The use of footnotes in legislation is a new trend, used to

Facilitate better and more streamlined cross-references (egthe Labour Relations Act). Although
the Acts in which
Footnotes are used expressly state that they do not form part

Of the Act, they may be used as external aids during the

Interpretation process.

© Definitions in the Constitution and the

Interpretation Act

There is a large number of definitions in other legislation

That expressly have a wider application. For instance, when

Interpreting old order legislation the definitions in item 3

Schedule 6 of the Constitution will be indispensable.

Furthermore, the definitions in s 2 of the Interpretation Act

Will apply to all other legislation unless expressly provided

Otherwise.

(c) The clock is ticking: computation of time

Lawyers and courts like ‘clear lines to be drawn in the sand’.

One of those ‘lines in the sand’ is time limits. Legal

Documents must be filed within a certain time; a debt has to

Be settled or a fine must be paid before a certain date, and

So on. The matter of the computation of time is very

Important, because a large number of statutory enactments

And contractual provisions prescribe a time or period in

Which or after which certain actions are to begin, or be

Executed, abandoned or completed. The failure to discharge

Obligations within a prescribed period may have dire

Consequences. How do we construe time clauses? What is a

Month, or a week? So, when does the ‘legal

Page 125

Clock’ start ticking and when does it stop? Although s 4 of the

Interpretation Act deals with computation of time, it is more

Complicated than that. There are also common-law methods

Of computation of time, as well as time clauses in other

Legislation (eg the Rules of the High Court and theMagistrate’s Court).

The meaning of time units

Year:

A year consists of a cycle of 365 days (366 days every fourth

Or leap year), and is based on the Gregorian calendar. Every

Year commences on 1 January and ends on 31 December.

Month:

The term ‘month’ could have three possible meanings:

According to s 2 of the Interpretation Act ‘month’

Means a calendar month (not a lunar month); in other

Words, the twelve unequal named periods which make up a

Year on the calendar (s 1 of the Value-Added Tax Act 89 of

1991 defines a month as ‘any of the twelve portions into

Which a calendar year is divided’); or

A lunar month of 28 days; or

A period of time stretching between two corresponding

Dates in succeeding months of the year (eg 9 June to 9 July).

The last meaning is the one used the most frequently in law.

However, it would be more appropriate to use the term

‘calendar month’ for the first alternative and ‘month’ for the

Last one.

Day:

Normally a day will be one of the 24-hour units of a week

Stretching from midnight to midnight, or it could be the

Hours of daylight (s 1 of the Criminal Procedure Act 51 of

1977 defines a day as the space of time between sunrise and

Sunset).

Week:

Traditionally a week as a part of a calendar runs from

Midnight on a Saturday to midnight on the next Saturday.

For the purpose of computation of time the courts regard aweek as any period of seven
successive days.

Page 126

Computation of time

The statutory method (s 4 of the Interpretation Act):

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 of the

First day and exclusively also of every such Sunday or public holiday.

Section 4 refers to days and not to periods of months or

Years. So the default method of calculation for days (and

Weeks as units of days) is the statutory method. The first day

Is excluded (the counting starts on the next day) and the last

Day is included, unless the last day falls on a Sunday or a

Public holiday, in which case the period will move on to the

Next day. Please note that Sundays and public holidays

Falling within the time period will be counted. Section 1 of

The Interpretation Act provides that s 4 will apply unless the

Contrary intention is clear from the particular legislation

(Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544

(A)).

In two instances the general principle of ‘first day

Excluded, last day included’ for days will not apply (only if

The intention to deviate from the default principle is clear):

First, the rules of court provide that where a number of ‘court

Days’ are referred to in a contract or legislation, the

Computation will not include Saturdays, Sundays and public

Holidays, nor can the period end on those days; and second,

Where there is a reference to a number of ‘clear days’ or ‘at

Least’ a number of days between two events, those days will

Be calculated with the exclusion of both the first and the last

Days (eg if it is a statutory requirement that notice of eight

Clear days be given for a meeting, both the day the notice is

Delivered and the day of the meeting are not counted as part of the eight days).
Off course, legislation may at any time change the default

Time calculation methods. For instance, the Income Tax Act:

Both s 83(23) (referring to Part III of the Act dealing with

Objections and appeals) and s 89sex(1) expressly provide

That a Saturday will also not be counted during the

Calculation of prescribed time periods:

(23) Any reference in this Part and the rules to “day” means any day

Other than a Saturday, Sunday or public holiday: Provided that the days

Between 16 December of a year and 15 January of the

Page 127

Following year, both inclusive, shall not be taken into account in determining

Days or the period allowed for complying with any provision in this Part or the

Rules.
89sex. Determination of day and time for payment of tax, interest or

Penalties.

(1) Where any day specified for any payment to be made under the

Provisions of this Act, or the last day of any period within which payment

Under any provision of this Act shall be made, falls on a Saturday, Sunday or a

Public holiday, such payment shall be made not later than the last business

Day falling prior to such Saturday, Sunday or public holiday.

Common-law methods

Three common-law methods of computation of time will be

Discussed briefly. Although part of common law, these

Methods complement s 4 of the Interpretation Act (the

Statutory method):

Ordinary civil method (computatio civilis): Unless

Clearly indicated otherwise, this method is the default

Method for the calculation of months and years and is the

Opposite of the statutory method (used for days). The first

Day of the prescribed 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 of the previous

Day).Case law examples:

A very interesting example of the ordinary civil

Method is Minister van Polisie v De Beer 1970 (2)

SA 712 (T). The case dealt with a claim for damages

After a police vehicle had collided with a private

Motor-car. In terms of s 32 of the Police Act 7 of

1958, a claim for damages against the police as a

Result of an action executed in terms of the Police

Act had to be instituted within six months. The

Collision took place on 5 August 1967. The

Summons was served on 5 February 1968. On

Appeal the Supreme Court found that the ordinary

Civil method should be used to calculate the time.

The last day was therefore excluded and the

Summons was therefore served one day too late. As

A result the action was refused.

Page 128

However, in Pivot Point SA (Pty) Ltd v Registrar of

Companies 1980 (4) SA 74 (T) the issue was the

Time period prescribed in s 45 of the Companies Act

61 of 1973, which provided that the Registrar may

‘within one month after the date of such decision or

Order, apply to the Court for relief’. The court held

That the language of the Act clearly indicated that

The ordinary civil method of calculating time was

Not to be used, because the provision stated ‘after

The date of such decision’. If time is to run ‘after’ a

Day or date, then clearly that day or date must be

Excluded from the reckoning of time.•

Natural method (computatio naturalis): Where this

Method is used, the prescribed period is calculated from the

Hour (or even minute) of an occurrence to the corresponding

Hour or minute on the last day of the period in question.

Extraordinary civil method (computatio extraordinaria):

Both the first and the last day of the period concerned are

Included. This method of time calculation is obsolete and is

No longer used by the courts.

ACTIVITY 6.2

1. CONTRAST the statutory (section 4 of the Interpretation Act) and common law (com-

Putation civilis) methods of calculating time periods.

2. John lodges an appeal in terms of section 27 (2) of the Act on 9 March 2009. The

Council informed him of its decision on 5 February 2009. Explain in detail the statutory

Method of computation of days (section 4 of the Interpretation Act) with reference to

Case law. Has John lodged the appeal in time?

3. When would a court be able to use a dictionary in interpreting the Act?

FEEDBACK

1. Section 4 of the Interpretation Act provides that days are computed by excluding the

First day and including the last day, unless it falls on a Sunday or public holiday, in
Which case the Sunday or public holiday is also excluded. Section 4 will only apply

When the legislature has made no other arrangements in the legislation concerned.

Where section 4 is not applicable the courts have accepted that the ordinary civil

Method applies. This method is directly opposite to the statutory method of section 4

Of the Interpretation Act. Time is computed de die in diem. The first day of the pre-

Scribed 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 of the previous day).

2. Section 4 of the Interpretation Act provides that days are computed by excluding the

First day and including the last day, unless it falls on a Sunday or public holiday in

Which case the Sunday or public holiday is also excluded. The time will therefore run

For 30 days from 6 February. The period expires on 7 March 2009. This happens to be

A Saturday, but John will in any event be out of time.

3. Dictionaries establish and demarcate the meaning of words and as such are used in-
Creasingly by courts. In Transvaal Consolidated Land and Exploration Co Ltd v

Johannesburg City Council it was held that dictionaries mark out the scope of the

Available meanings, but the context of the statute determines the particular meaning.

In De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka the court held that the dic-

Tionary meaning of a word was only a guideline. Context was the decisive factor. The

Same was held in S v Makhubela (meaning of “drive”). Dictionaries are thus always

Available as an external aid to interpretation

.
6.2THE HOLISTIC APPROACH (BALANCE BETWEEN TEXT AN
CONTEXT)

Complete the list that you started compiling above by adding the following two

Principles applicable to the initial reading of the legislative text.

6.2.1 Legislation must be read as a whole

6.2.2
Legislation must be read as a consistent whole. In common law, this is known as

Interpretation ex visceribus actus (literally, from the insides of the Act).

6.3 The holistic (contextual and
6.4
Structural) dimension: Don’t miss the

Wood for the trees

6.2.1 Legislation must be construed within the

6.2.2
Total legal picture

As was pointed out in Chapter 1, the interpretation of

Legislation involves more than analysing the particular

Provision in question. To interpret a text in its context

Includes the intra-textual context (the enactment as a whole,

Including its unique structure and legislative ‘codes’), as well

As the extra-textual context (the rest of the existing law and other

Page 129

Contextual considerations that might be applicable).

Currently one of the more serious practical problems is

Arguably the fact that many practitioners fail to see the

Bigger legal picture when they interpret legislation.

The interpreter has to study the legislation as a whole. In

Nasionale Vervoerkommissie van Suid-Afrika v Salz Gossow

Transport (Edms) Bpk 1983 (4) SA 344 (A), the court

Pointed out that when interpreting certain provisions, a

Statute must be studied in its entirety. A part from the legislation to be construed, the bigger
picture

Includes the Constitution and all other relevant law

(including old order legislation and the common law). Du

Plessis (1986:

Page 130

127-128) refers to this principle as the ‘structural wholeness

Of the enactment’, and Devenish (1992: 101) describes it as

Follows:
Interpretation should be ex visceribus actus, ie from the bowels of the Act or,

To paraphrase, ‘within the four corners of the Act’.

Practical example:

The term ‘organ of state’ is used throughout the

Constitution. Section 8(1) (application clause)

Provides that the Bill of Rights applies to all law,

And binds the legislature, the executive, the

Judiciary and all organs of state; s 195(2)©

Provides that the principles of basic values and

Principles governing public administration contained in s 195(1) also apply to all organs of state;
in

Terms of s 55(2)(b)(ii) the National Assembly must

Provide for mechanisms to maintain oversight of

Any organ of state; s 41(1)(d) states that all organs

Of state within each sphere of government must be

Loyal to the Constitution; and so on. However, who

And what is an organ of state?

That should not be too difficult to determine.

Section 239 of the Constitution defines it as

Follows:

‘organ of state’ means—

Any department of state or administration in the

National, provincial or local sphere of government; or

Any other functionary or institution—

Exercising a power or performing a function in

Terms of the Constitution or a provincial constitution;

Or
Exercising a public power or performing a public

Function in terms of any legislation,

But does not include a court or a judicial officer;

So far, so good. But what about higher education

Institutions such as universities, or state

Enterprises such as Eskom and Transnet? Other

Legislation also refers to an organ of state: s 1 of

The Promotion of Administrative Justice Act defines

An administrator as (amongst other things) an

Organ of state taking administrative action; and the

Institution of Legal Proceedings against Certain

Organs of State Act 40 of 2002 offers yet another

Definition. So no clarity yet . . .

Page 131
There is also a lot of case law on what an organ of state is. For example, in Van Rooyen v The
State

2001 (4) SA 396 (T) the court held that to all

Intents and purposes the Magistrates Commission is

An organ of state; Goodman Bros (Pty) Ltd v

Transnet Ltd 1998 (4) SA 989 (W) held that

Transnet performs a public function in terms of

Legislation, and it is an organ of state; in Hoffmann

V South African Airways 2001 (1) SA 1 (CC) the

Court decided that Transnet is a statutory body,

Under the control of the state, which has public

Powers and performs public functions in the public

Interest. It is well known that South African Airways

Is a business unit of Transnet, which means that

SAA is an organ of state and bound by the

Provisions of the Bill of Rights; according to Rail

Commuters Action Group v Transnet Ltd t/a

Metrorail 2005 (2) SA 359 (CC) a Cabinet Minister

Is an organ of state; in Directory Advertising v

Minister for Posts and Telecoms 1996 (3) SA 800

(TPD) it was held that Telkom is an organ of state;

And so on. Bekink (2012: 548—551) explains that s

239 refers to all departments and administrations,

Their agencies, divisions and officials; the President,

Cabinet, Parliament, Premiers, municipal councils,

The South African Human Rights Commission, the

Public Protector, the Auditor-General and the

Electoral Commission. Just to complicate matters

Even more, in Independent Electoral Commission v

Langeberg Municipality 2001 (3) SA 925 (CC) the

Court defined the Independent Electoral Commission

As an organ of state (as defined in s 239 of the

Constitution), but stated that it was not an organ of

State within the national sphere of government (for

The purposes of the dispute resolution requirements

Of s 41(3) of the Constitution). The term ‘organ of state’ may have different meanings,
depending on

The context; clearly there is more to interpretation

Of legislation than meets the eye!

6.2.3 Balance between text and context
6.2.4
Botha essentially continues and repeats here what he said earlier during the

Discussion of the contextual and textual approaches. Also note that it is not entirelycorrect to
argue that, prior to 1994, the courts subscribed only to the literal
Approach to interpretation. In Jaga v Dönges (see above) Schreiner JA emphasised

The importance of the contextual framework during interpretation. Of course, as

Botha argues, this does not mean that the legislative text is no longer significant.

The text has to be anchored to the context in question. The judgment of the

Constitutional Court in S v Zuma confirms that the text of the Constitution is of

Paramount importance, in spite of the fact that section 39(1) prescribes a purposive

Or contextual approach to constitutional interpretation. The same applies to

Statutory interpretation.
6.2.2 Balance between text and context

As was explained earlier, the courts had long held the view

That if the text of the legislation was clear and unambiguous,

Effect should be given to it. 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 (above)

Schreiner JA rejected this narrow view and stated that the

Interpreter could examine the broader context even when

The text was

Page 132

Quite clear. As Kruger (1991: 251) points out, legislation

Cannot be construed properly if text and context are

Separated. The meaning of the words of the text should be

Weighed up against the context of the legislation. From the

Outset the legislation as a whole, the surrounding

Circumstances, constitutional values and the text have to be

Considered to ascertain the purpose of the legislation.

Quoting from the Schreiner decision, Wessels JA in

Stellenbosch Farmers’ Winery v Distillers Corporation (SA)

Ltd 1962 (1) SA 458 (A) 476E-F described this balancing

Process as follows:

In my opinion it is the duty of the Court to read the section of the Act which

Requires interpretation sensibly, ie with due regard, on the one hand, to the

Meaning or meanings which permitted grammatical usage assigns to the

Words used in the section in question and, on the other hand, to the

Contextual scene, which involves consideration of the language of the rest of

The statute as well as the ‘matter of the statute, its apparent scope and

Purpose, and, within limits, its background’. In the ultimate result the Court

Strikes a proper balance between these various considerations and thereby

Ascertains the will of the Legislature and states its legal effect with reference. To the facts of the
particular case which is before it.

In Diepsloot Residents’ and Landowners’ Association v

Administrator, Transvaal 1994 (3) SA 336 (A) the court

Recognised the importance of legislative context. It held that

It is permissible to interpret the provisions of legislation

Against the background of the dismantling of apartheid.

These political developments were sufficiently well known for

The court to take judicial notice of them.

Supporters of the orthodox text-based approach to

Interpretation frequently accuse supporters of a text-in-

Context approach that they indulge in ‘free-floating’ methods

Of interpretation, which ignore the text of the legislation.

That is simply not true. The fact that there needs to be a

Balance between the text and context does not mean that

The legislative text may be ignored. After all, the context has

To be anchored to the particular text in question.

6.2.3 Structure of legislation
In this section, Botha explains how aspects such as the layout of text and

Punctuation can play a meaningful role in the interpretation process.

6.2.3 Structure of legislation

Structural aspects such as the table of contents,

Paragraphing, layout of the text and punctuation could play a

Meaningful role during the interpretation process.

It is a grammatical fact that punctuation can affect the

Meaning of the text. In R v Njiwa 1957 (2) SA 5 (N) the

Court

Page 133

Stated that punctuation must be considered during

Interpretation. In S v Yolelo 1981 (1) SA 1002 (A) the

Appellate Division held that an interpretation based on the

Purpose of the legislation prevails over an interpretation

Based only on the division into paragraphs. Finally, in

Skipper International v SA Textile and Allied Workers’ Union

1989 (2) SA 612 (W) a court held that since the punctuation

Was considered by the legislature during the passing of the legislation, it had to be used during
interpretation.
6.2.5 Conflicting legislation
6.2.6
Two important presumptions are discussed in this section. You need to be able to

Understand and apply these presumptions. The first important presumption is that

Legislation does not contain futile or nugatory provisions. This important

Presumption can also be stated as follows: the court must avoid an interpretation

That negates part of the legislative text or leaves part of the text without a meaning

Or purpose. Remember the rule that every word must be given a meaning? This

Basic principle is further bolstered by the common-law presumption that legislation

Does not contain invalid or purposeless provisions.

6.2.4 Conflicting legislation

(a) Legislation has a purpose: the presumption that

Legislation does not contain futile or nugatory

Provisions

Unless the contrary is clear, it is presumed that the

Legislature does not intend legislation which is futile or

Nugatory. Hahlo & Kahn (1973: 210) call it the principle of

‘effectual and purposeful legislation’. In a sense this

Presumption encapsulates the basis of the most important

Principle of interpretation: the court has to determine the

Purpose of the legislation and give effect to it. Since

Statutory interpretation is a purpose-seeking activity, this

Presumption is an acknowledgement that legislation has a

Functional purpose and object. In other words, if reasonably

Possible, try to keep the system running smoothly!

In Ex parte the Minister of Justice: In re R v Jacobson and

Levy 1931 AD 466 the court held that if the intention of the

Legislature is clear, it should not be defeated merely because

Of vague or obscure language. The court must, as far as

Possible, attach a meaning to the words which will promote

The aim of the provision. In SA Medical Council v Maytham

1931 TPD 45 the court emphasised that futile (useless)

Legislation must be avoided and that an attempt should be

Made to promote the ‘business efficacy’ of a provision, and in

Prokureur-Generaal v Van Zyl 1961 (1) SA 729 © the court

Favoured a practical, purposive interpretation. So: if there

Are two possible interpretations, the court must try, if it is

Reasonably possible, to adopt an interpretation that will

Render the legislation effective. In Esselman v Administrateur

SWA 1974 (2) SA 597 (SWA) the court emphasised an

‘effective and purposive’ interpretation over one which would

Defeat the provision, leaving it useless. In South AfricanTransport Services v Olgar 1986 (2) SA
684 (A) the

Appellate Division held that if a

Page 134

Provision is capable of two meanings, the meaning which is

More consistent with the purpose of the legislation should be

Accepted:

[T]he second interpretation . . . is more consistent with the smooth working

Of the system which the Act has been designed to regulate than the first

Interpretation.In Sekretaris van Binnelandse Inkomste v Lourens Erasmus

(Edms) Bpk 1966 (4) SA 434 (A) the court held that if

Possible the interpretation that avoids uncertainty, confusion

And conflict must be adopted. Furthermore, the presumption

Enables courts to try to interpret legislation in such a manner that evasion of its provisions is
prevented (Dadoo

Ltd v Krugersdorp Municipal Council 1920 AD 530). In

Dhanabakium v Subramanian 1943 AD 160, the court found

That as far as possible, legislation should be interpreted in

Such a way that a

Page 136

Casus omissus (omission) is avoided. As will be discussed

Later (Chapter 7 below), the courts may indeed modify

(adapt) the initial meaning of the legislation (in the light of

The presumption against futile provisions and within the

Framework of the purpose of the legislation). However, this

Presumption applies only if there is more than one possible

Interpretation, and cannot be used by a court to reinterpret

Legislation at will. In other words, this presumption cannot be

Used to hammer a square peg into a round hole.

The presumption also applies to subordinate legislation.

Here, the maxim ut res magis valeat quam pereat applies.

This means that an interpretation which will not leave the

Subordinate legislation ultra vires (and invalid), but rather

Intra vires and valid must be preferred (R v Vayi 1946 NPD

792). The ut res magis valeat quam pereat rule applies only

Where two interpretations of a provision are possible. The

Presumption cannot be used to rescue an administrative act

(conduct) which is defective and invalid from the outset

(Mamogalie v Minister van Naturellesake 1961 (1) SA 467

(A)). Consequently, any subordinate legislation in conflict

With the enabling Act (or any other original legislation, for

That matter) will also be invalidated.

(b) Conflicts with other legislation

Legislation which is in conflict with the Constitution is

Arguably the ultimate example of conflicting legislation.

However, in an attempt to avoid unconstitutionality, competent courts involved in constitutional

review may try, if

Reasonably possible, to employ a number of corrective

Techniques or remedial correction of legislation (so-called

Reading-down, reading-up, reading-in and severance) in an

Attempt to keep the legislation in question constitutional and

‘alive’ (see Chapter 9 below). If such efforts at remedial

Interpretation are unsuccessful, unconstitutionality

(invalidity) is the only alternative.

As was explained earlier (see 4.4 above) if there is a

Conflict between legislation and the system of co-operative

Government, the national legislation will generally prevail

Over the provincial legislation, but in some cases the

Provincial legislation may actually trump the national

Legislation. Sections 146-150 of the Constitution provide for

The intricate process of conflict resolution within this system

Of co-operative government.

If two different pieces of legislation are in conflict, they

Must be read together in an effort to solve the problem. If

The conflict

Page 137

Cannot be resolved and both enactments deal with the same

Issue, the earlier one will be repealed by implication by the

Later one (see 4.3 above). Where conflicting sets of

Legislation do not deal with the same topics, they will have to

Be read and applied (co-exist) together. If they cannot be

Reconciled in one way or another, the inevitable result is a

‘legislative short circuit’, since original legislation cannot be

Invalidated because it is vague or confusing (as is the case

With subordinate legislation). This means that there could be

A gap in the law. One solution—albeit drastic and the

Exception to the rule—could be the application of

Modificative interpretation, if the purpose of the respective

Legislation permits it (see Chapter 7 below). If that cannot be done, another possibility is to
apply s 39(2) of the

Constitution to ensure that the enactment which best

Promotes the spirit and purport of the Bill of Rights prevails Some legislation will expressly
provide for potential future

Conflicts with other legislation. For example, s 2(8) of the

Consumer Protection Act 68 of 2008 provides as follows:

(7) If there is an inconsistency between any provision of Chapter 5 of this

Act and a provision of the Public Finance Management Act, 1999 (Act 1 of 1999), or the Public
Service Act, 1994 (Proclamation 103 of 1994), the

Provisions of the Public Finance Management Act, 1999, or of the Public

Service Act, 1994, as the case may be, prevail.

As was explained in Chapter 2 (above), some legislation—

Such as the so-called ‘constitutional Acts’—contain clauses

Proclaiming their superiority over other legislation (except

The Constitution), which should avoid most legislative

Conflicts.
ACTIVITY 6.3
(The initial reading)

Read through paragraph 6.2.3 again and then consider the following application of this

Presumption or principle.

The interim Constitution contained the following transitional provision in section 241(8): “All

Proceedings which immediately before the commencement of this Constitution were

Pending before any court of law […], exercising jurisdiction in accordance with the law then

In force, shall be dealt with as if this Constitution had not been passed.”

When the Constitution came into operation on 27 April 1994, the criminal trial of Mhlungu

Was pending. Mhlungu argued that he was entitled to the protection offered by the

Constitutional right to a fair trial (which meant that certain evidence against him was no

Longer admissible). The state rejected this suggestion, as the case was already under way

And should thus be “dealt with as if the Constitution had not been passed”. The judges of the

Constitutional Court were sharply divided on the issue (see S v Mhlungu 1995 (3) SA 867

(CC)). The majority held that section 241(8) only meant that the old apartheid courts should
Complete cases before them. It did not mean that the substantive law that had to be applied

In these court cases after 27 April 1994 remained unaffected by the Constitution. The

Constitution had to be applied to the Mhlungu case and the evidence had to be excluded. A

Strong minority (lead by Kentridge J) held that the section meant that apartheid courts

Should complete cases before them under apartheid law “as if the Constitution had not been

Passed”. The Constitution thus did not apply to the Mhlungu case and the evidence had to

Be allowed as under apartheid law.

FEEDBACK

The majority rejected the minority’s interpretation because it violated the principle that every

Word and clause must be given a meaning or serve a purpose. This is what the majority had

To say at paragraphs 12–13:

“On the interpretation favoured by Kentridge AJ the reference in section 241(8) to ‘any court

Of law, exercising jurisdiction in accordance with the law then in force’ is quite incongruous

And difficult to understand. If the intention of the section was simply that all proceedings
Which were pending before the commencement of the Constitution before a Court of law

Should be dealt with as if the whole of the Constitution had not been passed, the

Qualification that such a Court of law had to be ‘exercising jurisdiction in accordance with the

Law then in force’ would appear to be quite unnecessary. […] On the interpretation favoured

By Kentridge AJ the relevant phrase therefore serves no purpose. On the interpretation

Which I favour, it does serve an important purpose: it serves to emphasise that the object of

The section is to preserve the authority of Courts dealing with pending matters to continue to

Discharge their functions as such Courts.”

Note that the majority accepted that the phrase “exercising jurisdiction in accordance with

The law then in force” had been inserted into the section for a purpose. They understood that

Their interpretive task was to find an interpretation that would reveal and give effect to that

Purpose. In their view, the purpose was precisely to stress that the section deals only with

Jurisdictional issues and not with the substantive law. The interpretation of the minority must
Not be followed, because it only focused on one part of the section and left the qualification

In the section without any purpose.

6.2.5 The King can do no wrong: The

Presumption that government bodies are not

Bound by their own legislation

As a general rule it is presumed that government bodies are

Not bound by their own legislation, unless the legislation

Page 139

Expressly or by necessary implication provides otherwise (eg

S 24 of the Interpretation Act). The presumption is trumped

Not only by the wording of the legislation, but also by the

Surrounding circumstances and other indications (Union

Government v Tonkin 1918 AD 533). Hahlo & Kahn (1973:

204) describe the presumption as follows:

An enactment does not apply to the state or its executive arm or to a

Provincial council, local authority or other public body from which it emanates.

Students usually associate this presumption with unbridled

Lawlessness by government agencies similar to the old

English-law principle The King can do no wrong. However, it

Does not mean that the state operates above the law, but is

Rather a principle of effectiveness to ensure that the state is

Not hampered in its government functions. According to Du

Plessis (1986: 79):

The presumption is first and foremost a functional means to the end of

Ensuring that the execution of the typical functions of government—in as far

As they are aimed at enhancing the public good and welfare—is not unduly

Hampered. Proper care should therefore also be exercised in order to ensure

That the presumption is invoked in such a way that it serves the purpose of
Maintaining a public order of law, in contradistinction to personal whims and

Fancies or sectional interests.

This explanation still does not remove or dispel fears of

Abuse of power by the government. Wiechers (1985: 332)

Suggested that the state should rather always be bound by

Its own legislation, except in those instances where it would

Be hindered in the performance of its government functions.

In S v De Bruin 1975 (3) SA 56 (T) the court rejected this

Viewpoint in the light of earlier precedents. The application of

This presumption was later confirmed by the Appellate

Division in Administrator, Cape v Raats Rontgen & Vermeulen

(Pty) Ltd 1992 (1) SA 245 (A)—the purpose of the

Presumption is to ensure that execution of the typical

Functions of government (those aimed at enhancing the

Public good and welfare) is not unduly hampered.

In Evans v Schoeman 1949 (1) SA 571 (A) the court

Mentioned the following indicators when the state will not be

Bound:

If the state would be rendered subject to the authority

Of or interference by its own officials; and

Page 140

If the state would be affected by penal provisions (as in

S v Huyser 1968 (3) SA 490 (GW) (see below)).

The question whether the state is bound depends on the

Particular legislation and specific circumstances, and each

Case has to be judged on its own merits. The following are

Examples of the practical application of the presumption:

Government bodies and state-controlled agencies are

Bound by town planning schemes (Drakensberg

Administration Board v Town Planning Appeals Board 1983

(3) SA 42 (N) and Boiler Efficiency Services CC v Coalcor

(Cape)(Pty) Ltd 1989 (3) SA 460 ©).

A security official who contravenes a statutoryprovision when acting outside the scope of his
duties cannot

Rely on the presumption against the state being bound (S v

Reed 1972 (2) SA 34 (RA)).

The driver of a fire engine may disregard a red traffic

Light while fire-fighting (S v Labuschagne 1979 (3) SA 1320

(T)).

An agricultural official who combats stock diseases and

From time to time has to cull animals is not bound by

Statutory requirements regarding hunting permits (S v

Huyser (above)).

Case law example:

S v De Bruin (above) is a rather interesting case, to

Put it mildly. The accused was charged with and

Convicted of exceeding the statutory speed limit. On

Appeal, De Bruin (a state prosecutor) claimed that

He was a public servant who, on the day in

Question, had been running late for an on-site

Inspection on the state’s behalf. If he had arrived

Late at the inspection premises, this could have

Been detrimental to the state’s case. The court

Found that being bound by the provisions in

Question could have obstructed essential state

Services and jeopardised state security. The court

Found that De Bruin’s decision to exceed the speed

Limit was reasonable, and set aside the conviction.

Steyn (1981: 77) correctly points out that this presumption

Applies to both original and subordinate legislation.

Furthermore Labuschagne (1978: 54) indicates, with

Reference to R v Thomas 1954 (1) SA 185 (SWA), that

Strictly speaking this presumption deals with the state being bound by

Particular provisions; the state might be bound by one

Provision of the legislation, but not by another.

Another distinction is necessary. Not being bound by

Legislation (as a result of the presumption) does not mean

That state liability is also automatically excluded. If police

Officers in hot pursuit of criminals ignore a red traffic light

(on the face of it quite lawfully), but they do so at break-

Neck speeds, not slowing down at intersections and without

Taking pedestrians and other motorists into consideration

During the chase, they cannot rely on this presumption to

Escape any possible delictual liability resulting from their

Actions. As Du Plessis (2002: 177) points out, the view of Wiechers

That this presumption should be applied the other way round

Has now been vindicated after all these years:

In short, a state defined by its own constitution as a ‘democratic state

Founded on the . . . values’ of ‘[s]upremacy of the Constitution and the rule of

Law’ most certainly is a constitutional state (Rechtsstaat) heedful of the

Principle of legality. This observation is confirmed by the constitutional demand

For the accountability of the public administration. The moment for what
Wiechers foresaw more than a decade and a half ago, has probably come.

In Fedsure Life Assurance Ltd v Greater Johannesburg

Transitional Metropolitan Council (above) para 58 the

Constitutional Court explained the principle of legality in the new constitutional order as
follows:

It seems central to the conception of our constitutional order that the

Legislature and Executive in every sphere are constrained by the principle that

They may exercise no power and perform no function beyond that conferred

Upon them by law. At least in this sense, then, the principle of legality is

Implied within the terms of the interim Constitution. Whether the principle of

The rule of law has greater content than the principle of legality is not

Necessary for us to decide here. We need merely hold that fundamental to

The interim Constitution is a principle of legality.

Since the constitutionality of this common-law presumption

Has not yet been tested in court, it still applies in South

Africa. However, the correct legal position in future should

Rather be as follows: government agencies and organs of

State should always be bound by their own legislation, unless

They can prove that they would be hampered in the

Execution of their duties and functions if bound by the

Legislation. Admittedly such a new principle will have to be

Prospective only, since retroactively undoing the vested

Rights and interests obtained by the state as a result of the

Application of this presumption in the past could prove to be

Impossible.
6.3 THE TELEOLOGICAL DIMENSION
6.4
The value-laden or teleological dimension of statutory interpretation focuses on the

Values of the Constitution. Botha emphasises once again that section 39 (2) is a
Peremptory provision and ensures that all statutes must be interpreted within the

Values of the Constitution.

6.3.1 The new constitutional approach to statutory interpretation

In this section Botha explains that this dimension of interpretation of statutes must

Form part of statutory interpretation right from the outset of interpreting legislation.

The values of the Constitution form part of “the implied contents” of all statutes
6.3 The value-laden (teleological)

Dimension: The ghost in the machine

6.3.1 The new constitutional approach to

Statutory interpretation, or, moving from

Bumper stickers to substantive interpretation

In Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24

(CC) para 149 Sachs J described the constitutional values as

Follows (emphasis added):

The values of the Constitution are strong, explicit and clearly intended to be

Considered part of the very texture of the constitutional project. They are

Implicit in the very structure and design of the new democratic order. The

Letter and the spirit of the Constitution cannot be separated; just as thevalues are not free-
floating, ready to alight as mere adornments on this or

That provision, so is the text not self-supporting, awaiting occasional

Evocative enhancement. The role of constitutional values is certainly not

Simply to provide a patina of virtue to otherwise bald, neutral and discrete

Legal propositions. Text and values work together in integral fashion to

Provide the protections promised by the Constitution.

However, the value-based dimension of statutory

Interpretation is not easy to implement. Since 1994 the

South African legal fraternity has had to face the dreaded V-

Word: values. These lawyers, judges and law teachers were

Schooled in and indoctrinated by a positivist idea of the law:

Iudicis est ius dicere sed non dare; Parliament knows best and

Has spoken; lawyers are not philosophers; plain meanings,

Clear texts and black letter law; formalism and his master’s

Voice; and so on.

Indeed, we now have a supreme Constitution, brimming

With references to fundamental values: freedom (including

Religious freedom, freedom of speech, and so on), equality

(both formal and substantive), human dignity, all the

Trimmings of a multi-party democracy, good governance (s

195 of the Constitution), openness, transparency, non-

Racism, non-sexism, tolerance, and so on and so forth. These

Values form the basis of a more mature society (S v

Makwanyane (above)) trying to be the better society alluded

To by former Chief Justice Mahomed in S v Acheson 1991 (2)

SA 805 (Nm) 813, when he said that a supreme Constitution

Is the mirror reflecting the national soul. But what are we

Doing in practical terms to animate those values through,

Amongst other things, the interpretation of legislation? Is s

39(2) of the Constitution nothing more than an empty

Gesture, mere hollow rhetoric?

Page 144

The value-based dimension of interpretation is more than

Simply paying lip-service, but involves making those values

Real; animating them through the making, interpretation,and application of the law, as well as
ensuring that the law is

Respected and adhered to. It involves a willingness to keep

Those values in mind, right from the outset; a mind shift that

Law comprises more than ideologies, power structures,

Politics, policies and the meaning of the words on paper.

As was pointed out earlier, s 39(2) of the Constitution

Ensures that interpretation of statutes also occurs within the

Value-laden (teleological and normative) constitutional

Framework. But s 39(2) cannot be merely window-dressing or

Hollow rhetoric. In Holomisa v Argus Newspaper Ltd (above)

844 the court referred to s 35(3) of the interim Constitution

(the forerunner of s 39(2) of the 1996 Constitution), stating

That the interpretation clause in the Constitution is

[not] merely an interpretive directive, but a force that informs all legal

Institutions and decisions with the new power of constitutional values.

In Coetzee v Government of the Republic of South Africa;

Matiso v Commanding Officer, Port Elizabeth Prison 1995 (4)

SA 631 (CC) para 46 Sachs J explained the teleological

Dimension of interpretation even better (emphasis added):

The values that must suffuse the whole process are derived from the concept

Of an open and democratic society based on freedom and equality, several

Times referred to in the Constitution. The notion of an open and democratic

Society is thus not merely aspirational or decorative, it is normative,

Furnishing the matrix of ideals within which we work, the source from which

We derive the principles and rules we apply, and the final measure we use for

Testing the legitimacy of impugned norms and conduct . . . [W]e should not

Engage in purely formal or academic analysis, nor simply restrict ourselves to

Ad hoc technicism, but rather focus on what has been called the synergetic

Relation between the values underlying the guarantees of fundamental rights

And the circumstances of the particular case.

This means that the constitutional values are not there to be

Used as fridge magnets or bumper stickers, or to be quoted

And insisted on when it suits you, but instantly forgotten

When it does not. In Harksen v President of The RSA 2000

(4) SA 478 (CC) para 18 the court emphasised that since the

Constitution is the supreme law of the land and that all

Legislation must be read subject to it, it is unnecessary for legislation expressly

To incorporate terms of the Constitution, and as a result

Constitutional provisions or values or principles are part of

The implied contents of statutes. But by the same token these

Values should not be used as a show of smoke and mirrors as

A cover-up for bad governance, like hiding a badly baked

Cake under layers of nice-looking icing.

Maybe it should be said: if we choose to ignore the V-

Word; if these values are not taken seriously and borne in

Mind constantly during (amongst other things) interpretation

Of legislation; and if we are not prepared to succumb to

Constitutionalism, we might as well get rid of the supreme

Constitution, the justiciable Bill of Rights and rights rhetoric,

And return to the former bad old days of sovereignty of

Parliament and executive-minded interpretation of

Legislation. Otherwise we need to become serious about the

Rights and values in the Constitution—including a new

‘constitutional’ approach to statutory interpretation—in other

Words, moving from bumper stickers to substantive justice.

But how do we animate and concretise those values? How

Does freedom influence no-parking signs? What is the link

Between having to pay your income tax before the due date

And human dignity? How can values influence the black

Letter of the law? A starting point for that is always using the

Constitution as a point of departure for legal analysis,

Interpretation and application, something which was not

Done by the court in the following example:

In fact, S v F was not the last case in the Western Cape that

Failed to get to grips with the new ‘constitutional approach’ to

Interpretation. In Winckler v Minister of Correctional Services

2001 (2) SA 747 © the court still followed the discredited

Text-based approach:

The golden rule governing the interpretation of a statute is to determine the

Intention of the Legislature. Such intention is established, in the first place, by

The plain language of the statute before resorting to other canons of

Construction. The primary supposition is that the Legislature intends what it

Says.

Fortunately there are examples of substantive interpretation

Of statutes. In Ngxuza v Permanent Secretary, Department

Of Welfare, Eastern Cape 2001 (2) SA 609 € Froneman J

Was aware of the changes brought about by the new

Constitutional order. The case dealt with a flexible and

Generous approach to the issue of locus standi (including a

Class action under s 38 of the Constitution) to make it easier

For disadvantaged and poor people to approach courts on

Public issues to ensure that public administration adheres to

Fundamental principle of legality in exercising public power.

His substantive approach to statutory interpretation and

Legal reasoning is clear from the following excerpts from the

Judgment (at 619):

There is a broader social context in which law is applied to particular facts in

Any given case. Where that terrain is familiar and the law to be applied is not

New that context is often assumed and not articulated. Here the position is

Different. The law is new and the social setting has changed. [T]he starting

Place to determine our assumptions is the Constitution . . . it is necessary in

This case, because of the relatively new legal position and the changed social

Context in which it is to be applied, to be open about one’s own views of that

Context. The reality is that the outcome of this case is not dictated by

Precedent or deductive legal reasoning alone: my interpretation of s 38 of the

Constitution is inevitably also influenced by my own views of the context in

Which it is to beinterpreted and applied. This is a truth that, I think, is now generally accepted
By legal theorists.
6.3.2 Ubuntu

In this section the African concept of Ubuntu is briefly explained. Although this

Concept does not expressly form part of the Constitution of 1996, it is an

Important value in South African jurisprudence. In S v Makwanyane, this value was

Made part of the South African jurisprudence.

6.3.2 Ubuntu

The postamble of the English text of the 1993 Constitution

Referred to ubuntu:

There is a need for understanding but not for vengeance, a need for

Reparation but not for retaliation, a need for ubuntu but not for victimisation

...

Ubuntu is an indigenous African concept and refers to a

Practical humanist disposition towards the world, including

Compassion, tolerance and fairness. (It is interesting to note

That the African Charter on Human and Peoples’ Rights also

Includes a positive duty to tolerate.) The concept was applied

And explained by the Constitutional Court in S v

Makwanyane (above) 501D-E:

Generally, ubuntu translates as ‘humaneness’. In its most fundamental sense,

It translates as ‘personhood’ and ‘morality’ . . . While it envelops the key

Values of group solidarity, compassion, respect, human dignity, conformity to

Basic norms and collective unity, in its fundamental sense it denotes humanity

And morality. Its spirit emphasises respect for human dignity, marking a shift

From confrontation to conciliation.

The concept of ubuntu is not expressly mentioned in the

Constitution of 1996. That does not mean that ubuntu will

Disappear from the South African legal stage. Since ubuntu

Was used in the Makwanyane case (above), it forms part of

The new South African constitutional jurisprudence. It may

Also be argued that ubuntu lives on in the numerous

References to human dignity in the Constitution. It forms an

Important bridge between the communal African traditions

And Western traditions, which focus on the individual, and

Could be a very useful extra-textual aid to statutory and

Constitutional interpretation.
6.5 THE HISTORICAL DIMENSION
6.6
The historical dimension to interpretation is explained in paragraphs 6.4.1–6.4.6 of

The prescribed book. Ensure that you understand where the historical aspects can

Be found, and how they should be applied to help determine the purpose of

Legislation.
6.4.1 Preamble to the Constitution
6.4.2
In S v Mhlungu (above) para 112 the constitutional preamble
Was described as follows:

Page 149

The Preamble in particular should not be dismissed as a mere aspirational and

Throat-clearing exercise of little interpretive value. It connects up, reinforces

And underlies all of the text that follows.

In Mkontwana v Nelson Mandela Metropolitan Municipality;

Bissett v Buffalo City Municipality; Transfer Rights Action

Campaign v MEC, Local Government and Housing, Gauteng

2005 (1) SA 530 (CC) the court stressed the fact that the

Constitution is a document committed to social

Transformation. In other words, it is a key that may help to

Unlock the secrets of other legislative texts. The preamble to

The Constitution reads:

PREAMBLE
We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this

Constitution as the supreme law of the Republic so as to—

Heal the divisions of the past and establish a society based on democratic

Values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which

Government is based on the will of the people and every citizen is equally

Protected by law;

Improve the quality of life of all citizens and free the potential of each
Person; and

Build a united and democratic South Africa able to take its rightful place as

A sovereign state in the family of nations.

May God protect our people.

Nkosi Sikelel’ iAfrica. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

6.4.3 Prior legislation
6.4.4
In Morake v Dubedube 1928 TPD 632 it was held that if

Legislation had been partially repealed, the remaining

Provisions had to be interpreted in their context, which

Included the repealed provisions. Although the repealed

Provisions can no longer be applied, they may be used as

Part of the context of the remaining legislation.

Page 150
6.4.3 Preceding discussions

Debates about a Bill before Parliament, the debates and

Reports of the various committees which form part of the

Legislative process, and the reports of commissions of inquiry

Constitute preceding discussions. The question as to whether

The courts may use such preceding discussions in construing

Legislation, and to what extent, has been the subject of lively

Debate in recent years. One should distinguish between

Debates during the legislative process on the one hand and

The reports of commissions of inquiry which preceded the

Passing of legislation on the other.

(a) Debates during the legislative process

Steyn (1981: 134) refers to the common-law writer Eckhard,

Who believed that the debates preceding the acceptance of a

Bill are important in establishing the intention of the

Legislature, especially when this is not evident from the

Wording of the legislation. However, in the past the use of

Debates was not accepted by the courts. In Bok v Allen 1884

SAR 137 and Mathiba v Moschke 1920 AD 354, the use of

Preceding discussions in the interpretation process was

Rejected outright, although the court a quo in the Moschke

Case had, in fact, taken preceding debates into account.

The opposition to these debates may be disappearing. In

Ngcobo v Van Rensburg 1999 (2) SA 525 (LCC) para 27 the

Court referred to the use of explanatory memoranda during

The interpretation of statutes:

The weight of authority is very much against allowing such documents to be

Called in [to] aid in the interpretation of a statute. This authority has received

Considerable academic criticism. There are also a few authorities which seem

To suggest a softening of attitudes by South African Courts to certain of the

Documents which precede the passing of an Act.

For instance, in De Reuck v Director of Public Prosecutions,

Witwatersrand Local Division 2003 (3) SA 389 (W) the court

Used parliamentary debates, reports of task teams and the

Views of academics when it had to interpret the Films and

Publications Act 65 of 1996; in Western Cape Provincial

Government: In re DVB Behuising (Pty) Ltd 2001 (1) SA 500

(CC) the Constitutional Court used parliamentary debates

During interpretation; in Case v Minister of Safety and

Security; Curtis v Minister of Safety and Security 1996 (3)

SA 617 (CC)
Page 151

The Constitutional Court referred to the speech by a Minister

During the second reading of a Bill; and in S v Dzukuda; S v

Tilly; S v Tshilo 2000 (3) SA 229 (W) 233 the court referred

To a report of the South African Law Commission and a

Ministerial speech in Parliament during the interpretation of

A statute.

(b) Commission reports

In Hopkinson v Bloemfontein District Creamery 1966 (1) SA

159 (O) the court held that the prevailing law prevented the

Use of a commission report about the Companies Act.

However, in Rand Bank Ltd v De Jager 1982 (3) SA 418 ©

The court decided that the report of the commission of

Enquiry, which later resulted in the Prescription Act 68 of

1969, was an admissible aid in construing the Act. InWestinghouse Brake and Equipment (Pty)
Ltd v Bilger

Engineering (Pty) Ltd 1986 (2) SA 555 (A) the Appellate

Division held that the report of a commission of enquiry

Which preceded the passing of an Act may be used to

Establish the purpose of the Act, if a clear link exists between

On the one hand the subject matter of the inquiry and

Recommendations of the report, and on the other, the

Legislation under consideration.

In Dilokong Chrome Mines (Edms) Bpk v Direkteur-

Generaal, Departement van Handel en Nywerheid 1992 (4)

SA 1 (A) the court had to decide whether or not to use a

Report of a member of the Standing Committee, which did

Not table an official report. The court found that the evidence

Of a single member of the committee was inadmissible, since

It merely represented his own subjective opinion of the

Deliberations.

The reasons given by the courts for not admitting such

Material are not very convincing (eg not all debates might be

Relevant or useful during the interpretation of legislation).

After all, the courts are expected to use their discretion in

Imposing punishment, and to reach conclusions amidst

Conflicting evidence. During statutory interpretation the

Judiciary should be able to separate the good and bad in

Parliamentary debates. A speech by the Minister during the

Second reading of a Bill, as well as the explanatory

Memoranda provided to members of Parliament may be

Useful in aiding understanding. If readily available, the

Deliberations and reports of the large number of standing, ad

Hoc, joint and portfolio committees of legislative bodies

(which play an important role during the legislative process)

Could be used to help ascertain the purpose of the resulting

Legislation.6.4.4 The mischief rule

The historical context of the particular legislation is used to

Place the provision in question in its proper perspective. This

Historical context is also known as the mischief rule. The

Mischief rule was laid down in the 16th century by Lord Coke

In the famous Heydon’s Case (1584) 3 Co Rep 7a (76 ER

637) and forms one of the cornerstones of a text-in-context

Approach to interpretation. It poses four questions that will

Help to establish the meaning of legislation:

What was the existing law (the legal position) before

The legislation in question was adopted?

Which problem (mischief or defect) was not adequately

Addressed by the existing law before the new legislation was

Adopted?

What remedy (solution) is proposed by the new

Legislation to solve this problem?

What is the true reason for the proposed remedy?

The aim of the rule is to examine the circumstances that lead

To the adoption of the legislation in question. The mischief

Rule has been applied on numerous occasions by the courts.

For example, as a result of the incomprehensible language

Used in the Compulsory Motor Vehicle Insurance Act 56 of

1972, the court in Santam Insurance Ltd v Taylor (above)

Examined the historical background of the Act in order to

Ascertain its purpose.

6.4.5 Contemporanea expositio

6.4.6
This is an explanation of the legislation which is given by

Persons in some or other way involved in the adoption of the

Legislation, or shortly afterwards during its first application.

Explanatory memoranda issued by government departments

And state law advisors, as well as the first application of the

New legislation are all examples of contemporanea expositio.

The publication of a Bill is often accompanied by the publication of an explanatory

memorandum from its drafters.

Such a memorandum may help to determine the purpose of

Statutory provisions of the Act resulting from the Bill. In

National Union of Mineworkers of SA v Driveline Technologies

2002 (4) SA 645 (LAC) and Shoprite Checkers (Pty) Ltd v

Ramdaw 2001 (3) SA 68 (LC) the courts used the

Explanatory memorandum to interpret the Labour Relations

Act.

Page 153

6.4.7 Subsecuta observatio

6.4.8
This category of external aids to interpretation refers to

Established administrative usage (or custom) over a period of

Time. The way legislation has been applied in practice—by

The very agencies and departments entrusted with its

Administration—may be a very good indication of its aim and

Purpose. Although the long-term use of legislation cannot

Dictate a particular interpretation to the courts, it may just

Be the deciding factor where two interpretations are possible.

Typical examples of administrative usage are interpretation

Notes, circulars and explanatory notes issued by the South

African Revenue Service or the Registrar of Pension Funds.

Case law example:

In Nissan SA (Pty) Ltd v Commissioner for Inland

Revenue 1998 (4) SA 860 (SCA) court had to

Decide on the possible use of commission reports

And subsecuta observatio. The plaintiff, a

Manufacturer, distributor and exporter of motor

Vehicles, relied on the exemption afforded by s

10(1)(zA) of the Income Tax Act 58 of 1962 (as

Amended). The plaintiff relied on reports of

Commissions of inquiry and administrative practice

(reports of the Board of Trade and Industry and the

Way in which the provision had been interpreted by

The Department of Internal Revenue). The court

Ruled that it could not be taken into account: the

Reports did not show which of the Board’s findings

Had been accepted, and the Commissioner’s

Interpretation had been discarded too quickly to be

Used as part of subsecuta observatio and

Contemporanea expositio.

The purpose of the Interpretation Notes is to provide

Guidelines to SARS employees and taxpayers regarding the

Interpretation and application of the provisions of the various

Laws administered by SARS. These Notes will ultimately

Replace all the existing Practice Notes and internal Circular

Minutes, to the extent that they relate to the interpretation

Of the various laws. The Notes will be amended from time to

Time in line with policy developments and changes in the

Legislation.

Pension Fund Circulars constitute best practice with regard

To retirement funds as prescribed by the Registrar of Pension

Funds from time to time and reflect the Registrar’s

Interpretation, discretion or requirements in respect of

Various issues. Although the provisions of these circulars are

Adhered

Page 154

To by the industry ‘by agreement’ with the Financial Services

Board, they do not necessarily have any legal status as such

And are not enforceable in any formal manner.

The following is an abbreviated example of a typical SARS

Interpretation note:

GENERAL NOTE GN 37
GENERAL SUBJECT: SECOND SCHEDULE TO THE INCOME TAX

ACT, NO 58 OF 1962

SPECIFIC ASPECT: MAINTENANCE AWARDS

STATUS: OPINION

PURPOSE: To convey the view of the South African Revenue Service

Regarding the tax treatment of a retirement fund maintenance order of

Court.

...

ISSUED BY—
LEGAL AND POLICY DIVISION

SOUTH AFRICAN REVENUE SERVICE

Date: 31 October 2008

6.5 THE COMPARATIVE DIMENSION

6.6
In paragraphs 6.5.1 and 6.5.2, Botha explains the difference between foreign law

And international law, and how that impacts on interpretation. Study these sections

Carefully and ensure that you understand the difference between foreign law and

International law, as well as the relevant constitutional provisions.

6.5 The comparative dimension

6.5.1 Foreign law

In the past, South African courts could refer to foreign law

And foreign case law during the interpretation of legislation.

For instance, sometimes the courts have to interpret a

Section of an English statute that has been incorporated

Word-for-word into South African legislation. The question is

Whether the South African courts may follow the

Interpretation given to the English legislation by the English

Courts. South African courts may use the interpretation of

The English courts as a guideline—if the South African

Legislation is identical to the original English legislation and

The interpretation of the English courts is not in conflict with

South African common-law principles, the South African

Courts may take cognisance of the English decided cases.

This is now further qualified by the Constitution. Section

39(2) provides that, when our common law is developed by

Any court, tribunal or forum, the spirit, purport and objects

Of the Bill of Rights must be promoted. Now it is not only the

Rules of common law that determine whether our courts refer

To foreign law, but the supreme Constitution as well. Since

The interpretation of legislation begins and ends with theConstitution, foreign law and
comparable case law from other

Jurisdictions should be applied with circumspection (S v

Zuma 1995 (2) SA 642 (CC)).

Page 155

6.5.2 International law

Section 233 of the Constitution is another interpretation

Clause, but also deals with the relationship between the

Constitution (and all South African law) and public

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.

Section 233 is a peremptory provision, and is the

Constitutional confirmation of the common-law presumption

That legislation does not violate international law. It states

That a court must prefer a reasonable interpretation that is

Not in conflict with international law. Any interpretation of s

233 is subject to s 1© (the foundation clause); s 2 (the

Supremacy clause); and s 8(1) (the application clause). Of

Course, it could be argued that s 233 in effect strengthens s

39(2) of the Constitution; any reasonable construction which

Is consistent with international law (international human

Rights law in particular), will promote the spirit, purport and

Objects of the Bill of Rights.

Section 233 is qualified by the two provisions which also

Deal with international law: in terms of s 231 an

International agreement (a treaty) becomes law in the

Republic when it is enacted into law by national legislation;

And s 232 provides that customary international law is law in

The Republic unless it is inconsistent with the Constitution or

An Act of Parliament.
Practical examples:

In terms of s 3 of the Implementation of the Rome

Statute of the International Criminal Court Act 27

Of 2002 (which commenced on 16 August 2002),

The objects of the Act are to create a framework to

Ensure that the Statute is effectively implemented

In the Republic, and that anything done in terms of

The Act conforms with the obligations of the

Republic in terms of the Statute, and to provide for

The crimes of genocide, crimes against humanity

And war crimes.

Page 156

Section 3© of the Labour Relations Act 66 of 1995

Provides that the Act must be interpreted in such a

Way that it is in compliance with the public

International law obligations incumbent on the

Republic.

6.7 IMPORTANT ADDITIONAL PRESCRIBED CASE LAW

6.8
Please note that the following two cases form part of your prescribed study

Material. By now you should be able to read legislative texts and case law while

Applying the rules of interpretation. These cases are excellent examples of how

Courts applied the rules of interpretation to interpret legislation. As we want you to

Not only know the substantive work, but to be able to apply that knowledge as well,

You are expected to study these cases on your own.

● Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1

● Assign Services (Pty) Limited v National Union of Metal Workers of South Afri-

Ca CCT 194/17

TEST YOURSELF

(1) List and briefly discuss all the internal aids (at least eight) that may be con-

Sulted during the process of interpretation.

(2) Briefly criticise the rule that, in the case of irreconcilable conflict, the signed

Version of the text prevails.

(3) Explain whether it is permissible in our law to have regard to the preamble

When interpreting a statute.

(4) What is the “long title” of an Act? Does it play any role in the interpretation
Process?

(5) May a court consult parliamentary debates preceding the adoption of legisla-

Tion during the interpretation process? If so, for what reason may a court

Consult these debates?

(6) Explain the “mischief rule”. Refer to relevant case law.

(7) Explain the meaning of “month” in terms of section 2 of the Interpretation

Act 33 of 1957.

(8) Explain the statutory method for the computation of time. When does this

Method apply?

(9) Discuss the presumption that legislation does not oust or restrict the jurisdic-

Tion of the courts. In your answer, explain the effect of the Constitution on

This presumption. Refer to case law.

STUDY UNIT 6

Set out and explain the rules and principles that apply to the initial or first reading of the
legislative
Text

The basic language principles about the meaning of the text may be regarded as, at best, initial

And merely tentative rules. In the first instance, it is the purpose of the legislation, viewed
against

The fundamental rights contained in the Constitution, which will qualify the meaning of the text.

The interpretation process begins with the reading of the legislation concerned. The ordinary

Meaning must be attached to the words.

The principle that the ordinary meaning should be given the words of the legislation is only the

Starting point of the interpretation process. It means that the interpreter should not attach
anartificial (strained or unnatural) meaning to the text. However, the context of the legislation,

Including all the factors both inside and outside the text, which could influence and qualify the

Initial meaning of the provision, has to be taken into account right from the outset.

EVERY WORD IS IMPORTANT

The principle that a meaning has to be assigned to every word derives from the rule that words

Are to be understood according to their ordinary meaning. Legislation should be interpreted in

Such a way that no word or sentence is regarded as redundant (superfluous or unnecessary).

NO ADDITION OR SUBTRACTION

It is a basic rule of interpretation that there may be no additions to or subtractions from the words

Used in the legislation. This is a default setting, based on the separation of powers principle. For

All practical purposes, it is sufficient to know that the courts may not supply omissions in
legislation

At will.

THE CONTINUING TIME-FRAME OF LEGISLATION: THE LAW IS ALWAYS SPEAKING

If words bear their ordinary meaning – initially at least – the question is whether words in
existing

Legislation should interpreted according to their present-day meaning, or whether they should

Retain the meaning they had when the legislation was passed.

When considering this continuing time-frame of legislation it must be borne in mind that all

Legislation has to be interpreted so as to promote the spirit and scope of the Bill of Rights, but
that
A supreme constitution is not a static document, nor are the values underpinning it static.

The rule of law principle means that courts will always need to balance the dimension of futurity

With legality issues such as offences, penalties and vested rights, as well with legal certainty.

Identify all the internal and external aids to statutory interpretation

Internal aids to statutory interpretation:

1. The legislative text in another official language

a. Original legislation

The signing of legislation is part of the prescribed procedure during the passing of

Original legislation. Old order legislative texts were signed alternately (in turn) in the

Languages in which they were drafted and the signed text was enrolled for record at

The Appellate Division. In case of an irreconcilable conflict between the various

Legislative texts, the signed one prevailed.

With regard to the 1996 Constitution itself, s 240 of the Constitution states that the

English text will prevail in the event of any inconsistency between the different texts.
The Constitution also provides (ss 82 and 124) that the versions of all new national

And provincial legislation which have been signed by the President or a provincial

Premier respectively, has to be entrusted to the Constitutional Court for safekeeping.

The signed version of the legislative text does not carry more weight simply because

That is the one which was signed:

- The signed version is conclusive only when there is an

irreconcilable conflict

Between the versions;

If the one version of the text is wider than the other (e.g. one version prescribed a

Penalty of imprisonment and a fine and the other only a fine) then the common-

Denominator rule is followed and only a fine will be imposed;

- If the versions differ but there is no conflict, the versions

complement one another

And they have to be read together;

- Even the unsigned version of the legislative text may be used to

determine the
Intention of the legislature;

- Because statutes are signed using alternate languages, amendment

Acts may

Create a problem.

Subordinate legislation – in practice all the versions of subordinate legislation will be

Signed, and the signed text cannot be relied on to resolve conflicts between texts. If

There is an irreconcilable conflict between the various texts, the court will give

Preference to the one that benefits the person concerned.

b. The preamble

The preamble usually contains a programme of action or a declaration of intent with

Regard to the broad principles contained in the particular statute. Although a preamble

On its own can never provide the final meaning of the legislative text, post-1994

Preambles should provide the interpreter with a starting point – it is they key that

Unlocks the first door in the process of statutory interpretation.

 c. The long title

The long title provides a short description of the subject matter of the legislation. It

Forms part of the statute considered by the legislature during the legislative process.

The role played by the long title in helping to ascertain the purpose of the legislation

Will in each case depend on the information it contains. The courts are entitled to refer

To the long title of a statute to establish the purpose of the legislation.

d. The definition clause

Almost all statutes contain a definition clause. This is an explanatory list of terms in

Which certain words or phrases used in the legislation are defined. The definition

Section always starts with the phrase “In this Act, unless the context indicates

Otherwise ….”. A definition in the definition clause is conclusive, unless the context in

Which the word appears in the legislation indicates another meaning.

e. Express purpose clauses and interpretation guidelines

While a preamble is formulated in wide and general terms, and the long title is nothing

More than a summary of the contents of an Act, the express purpose clause and

Interpretation guidelines contain more detail and are more focused, and should be

More valuable during the interpretation process.

f. Headings to chapters and sections

Headings to chapters or sections may be regarded as introductions to those chapters

Or sections. Within the framework of text-in-context, headings may be used to

Determine the purpose of the legislation.

g. Schedules

Schedules serve to shorten and simply the content matter of sections in legislation.

The value of a schedule during interpretation depends on the nature of the schedule,

Its relation to the rest of the legislation and the language in which the legislation refers

To it. In the case of conflict between the schedule and a section in the main legislation,

The section prevails.

External aids to statutory interpretation:

a. Dictionaries and linguistic evidence

Courts often use dictionaries during interpretation. In the court case of De Beers Industrial

Diamond Division (Pty) Ltd v Ishizuka 1980 (2) SA 191 (T) the court reiterated that the

Meaning of a word cannot be determined conclusively by its dictionary meaning. A

Dictionary cannot prescribe which of several possible meanings of a particular word should

Prevail – the context in which a word is uses should be the decisive factor.

b. Examples and footnotes

The use of footnotes in legislation is a new trend, used to facilitate better and more

Streamlined cross-references, they may be used as external aids during the interpretation

Process.

c. Definitions in the Constitution and the Interpretation Act

There is a large number of definitions in other legislation that expressly have a wider

Application. The definitions of s 2 of the Interpretation Act will apply to all other legislation
Unless expressly provided otherwise.

d. The clock is ticking: computation of time

The matter of the computation of time is very important, because a large number of

Statutory enactments and contractual provisions prescribe a time or period in which or

After which certain actions are to begin, or be executed, abandoned or completed.

Explain and apply the basic provisions of the Interpretation Act dealing with the computation of

Time

THE MEANING OF TIME UNITS

YEAR

A year consists of a cycle of 365 days and is based on the Gregorian calendar. Every

Year commences on 1 January and ends on 31 December.

MONTH

The term ‘month’ could have 3 possible meanings:

 - According to s 2 of the Interpretation Act ‘month’ means a calendar month

- A lunar month of 28 days or

- A period of time stretching between two corresponding dates in succeeding months

Of the year.

The last meaning is the one used the most frequently in law.

DAY
Normally a day will be one of the 24-hour units of a week stretching from midnight to

Midnight, or it could be the hours of daylight.

WEEK

Traditionally a week as a part of a calendar runs from midnight on a Saturday to midnight

On the next Saturday. For the purpose of computation of time the courts regard a week

As any period of seven successive days.

Section 4 refers to days and not to periods of months or years. So the default method of

Calculation for days (and weeks as units of days) is the statutory method. The first day is
Excluded (the counting starts on the next day) and the last day in included, unless the last

Day falls on a Sunday or a public holiday, in which case the period will move on to the next

Day. Section 1 of the Interpretation Act provides that s 4 will apply unless the contrary

Intention is clear from the particular legislation.

In 2 instances the general principle of ‘first day excluded, last day included’ for days will

Not apply:

1. The rules of court provide that where a number of ‘court days’ are referred to in a

Contract or legislation, the computation will not include Saturdays, Sundays and public

Holidays, nor can the period end on those days;

2. Where there is a reference to a number of ‘clear days’ or ‘at least’ a number of days

Between two events, those days will be calculated with the exclusion of both the first

And the last day.

Discuss common law presumptions as an external aid to interpretation

Three common-law methods of computation of time:

1. Ordinary civil method (computatio civilis): unless clearly indicated otherwise, this

Method is the default method for the calculation of months and years and is the

Opposite of the statutory method (used for days). The first day of the prescribed 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 of the previous day).

2. Natural method (computatio naturalis): where this method is used, the prescribed

Period is calculated from the hour (or even minute) of an occurrence to the

Corresponding hour or minute on the last day of the period in question.

3. Extraordinary civil method (computatio extraordinaria): both the first and the last day

Of the period concerned are included. This method of time calculation is obsolete and

Is no longer used by the courts.

Contrast the statutory (section 4 of the Interpretation Act) and common law (computation civilis)

Methods of calculating periods.

Section 4 of the Interpretation Act provides that days are computed by excluding the first day and

Including the last day, unless it falls on a Sunday or public holiday, in which case the Sunday or

Public holiday is also excluded. Section 4 will only apply when the legislature has made no other

Arrangements in the legislation concerned. Where section 4 is not applicable the courts have

Accepted that the ordinary civil method applies. This method is directly opposite to the statutory

Method of section 4 of the Interpretation Act. Time is computed de die in diem. The first day of
the prescribed 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 of the previous day).

John lodges an appeal in terms of section 27(2) of the Act on 9 March 2009. The Council
informed

Him of its decision on 5 February 2009. Explain in detail the statutory method of computation of

Days (s 4 of the Interpretation Act) with reference to case law. Has John lodged the appeal in

Time?

Section 4 of the Interpretation Act provides that days are computed by excluding the first day and

Including the last day, unless it falls on a Sunday or public holiday, in which case the Sunday or
Public holiday is excluded. The time will therefore run for 30 days from 6 February. The period

Expires on 7 March. This happens to be a Saturday, but John will in any event be out of time.

When would a court be able to use a dictionary in interpreting the Act?

Dictionaries establish and demarcate the meaning of words and as such are used increasingly by

Courts. In Transvaal Consolidated Land and Exploration Co Ltd v Johannesburg City Council it

Was held that dictionaries mark out the scope of the available meanings, but the context of the

Statute determines the particular meaning. In De Beers Industrial Diamond Division (Pty) Ltd v

Ishizuku the court held that the dictionary meaning of a word was only a guideline. Context was

The decisive factor. The same was held in S v Makhubela (meaning of ‘drive’). Dictionaries are

Thus always available as an external aid to interpretation.

The initial reading – application of this presumption of principle

The interim Constitution contained the following transitional provision in section 241(8): “all

Proceedings which immediately before the commencement of this Constitution were pending
Before any court of law […] exercising jurisdiction in accordance with the law then in force,
shall

Be dealt with as if this Constitution had not been passed.”

When the Constitution came into operation on 27 April 1994, the criminal trial of Mhlungu was

Pending. Mhlungu argued that he was entitled to the protection offered by the constitutional right

To a fair trial (which meant that certain evidence against him was no longer admissible). The
state

Rejected this suggestion, as the case was already under way and should thus be “dealt with as if

The Constitution had not been passed”. The judges of the Constitutional Court were sharply

Divided on the issue (see S v Mhlungu 1995 (3) SA 867 (CC)). The majority held that section

241(8) only meant that the old apartheid courts should complete cases before them. It did not

Mean that the substantive law that had to be applied in these court cases after 27 April 1994

Remained unaffected by the Constitution. The Constitution had to be applied to the Mhlungu
case

And the evidence had to be excluded. A strong minority (lead by Kentridge J) held that the
section
Meant that apartheid courts should complete cases before them under apartheid law “as if the

Constitution had not been passed”. The Constitution thus did not apply to the Mhlungu case and

The evidence had to be allowed as under apartheid law.

The majority rejected the minority’s interpretation because it violated the principle that every
word

And clause must be given a meaning or serve a purpose. This is what the majority had to say at

Paragraph 12 – 13.

“On the interpretation favoured by Kentridge AJ the reference in section 241(8) to ‘any court of

Law, exercising jurisdiction in accordance with the law then in force’ is quite incongruous and

Difficult to understand. If the intention of the section was simply that all proceedings which were
pending before the commencement of the Constitution before a Court of law should be dealt with

As if the whole of the Constitution had not be passed, the qualification that such a Court of law

Had to be ‘exercising jurisdiction in accordance with the law then in force’ would appear to be

Quite unnecessary […]. On the interpretation favoured by Kentridge AJ the relevant phrase

Therefore serves no purpose. On the interpretation which I favour, it does serve an important
Purpose: it serves to emphasis that the object of the section is to preserve the authority of Courts

Dealing with pending matters to continue to discharge their functions as such Couts”.

The majority accepted that the phrase “exercising jurisdiction in accordance with the law then in

Force” had been inserted into the section for a purpose. They understood that their interpretive

Task was to find an interpretation that would reveal and give effect to that purpose. In their view,

The purpose was precisely to stress that the section deals only with jurisdictional issues and not

With the substantive law. The interpretation of the minority must not be followed, because it only

Focused on one part of the section and left the qualification in the section without any purpose.

Briefly criticize the rule, that in case of irreconcilable conflict, the signed version of the text
prevails

If there is an irreconcilable conflict between the various texts, the court will give preference to
the

One that benefits the person concerned (Bolnik v Charman of the Board appointed by the SA

Council of Architects 1982 (2) SA 397 ©). This approach is based on the presumption that the

Legislature does not intend legislation that is futile or nugatory. If the irreconcilable conflict
leads
To subordinate legislation that is vague and unclear, the court may declare it invalid. (Kock v

Scottburgh Town Council 1957 (1) SA 213 (D)).

In addition the Joint Rules of Parliament require that a translated version of a Bill that has been

Adopted must be submitted together with the Bill to be signed into law. In practical terms this

Means that new Acts of Parliament are promulgated only in English.

Explain whether it is permissible in our law to have regard to the preamble when interpreting

Statute.

In Jaga V Donges Schreiner JA considered the preamble to be part of the context of the statute.

In a number of recent cases (eg Qozeleni v Minister of Law and Order 79D-E and Khala v The

Minister of Safety and Securty 1994 (4) SA 218 (W) 221) the courts acknowledged the
unqualified

Application of the Constitution’s preamble. In National Director of Public Prosecutions v

Seevnarayan 2003 (2) SA 178 © 194 the court rejected the argument that a preamble may be

Considered only if the text of the legislation is not clear and ambiguous as an outdated approach
To interpretation.

Preambles tend to be programmatic and couched in general terms, but they may be used during

Interpretation of legislation since the text as a whole should be read in its context. Although a

Preamble on its own can never provide the final meaning of the legislative text, post-1994

Preambles should provide the interpreter with a starting point – it is the key that unlocks the first

Door in the process of statutory interpretation.

May a court consult parliamentary debates preceding the adoption of legislation during the

Interpretation process? If so, for what reason may a court consult these debates?

Steyn (1981: 134) refers to the common-law writer Eckhard, who believed that the debates

Preceding the acceptance of a Bill are important in establishing the intention of the legislature
especially when this is not evident from the wording of the legislation. However, in the past the

Use of debates was not accepted by the courts.

The opposition of debates may be disappearing. In Ngcobo v Van Rensburg 1999 (2) SA 525

(LCC) paragraph 27 the court referred to the use of explanatory memoranda during the
Interpretation of statutes:

“the weight of authority is very much against allowing such documents to be called in [to] aid in

The interpretation of a statute. This authority has received considerable academic criticism.
There

Are also a few authorities which seem to suggest a softening of attitudes by South African Courts

To certain of the documents which precede the passing of an Act.”

The reasons given by the courts for not admitting such material are not very convincing (eg not

All debates might be relevant or useful during the interpretation of legislation). After all, the
courts

Are expected to use their discretion in imposing punishment, and to reach conclusions amidst

Conflicting evidence.

If readily available, the deliberations and reports of the large number of standing, ad hoc, joint

And portfolio committees of legislative bodies (which play an important role during the
legislative

Process) could be used to help ascertain the purpose of the resulting legislation.
Explain the ‘mischief rule’. Refer to relevant case law

The historical context of the particular legislation is used to place the provision in question in its

Proper perspective. This historical context is also known as the mischief rule. The mischief rule

Was laid down in the 16th century by Lord Coke in the famous Heydon’s Case (1584) 3 Co Rep

7a (76 ER 637) and forms one of the cornerstones of a text-in-context approach to interpretation.

It poses 4 questions that will help to establish the meaning of legislation:

1. What was the existing law (the legal position) before the legislation in question was

Adopted?

2. Which problem (mischief or defect) was not adequately addressed by the existing law

Before the new legislation was adopted?

3. What remedy (solution) is proposed by the new legislation to solve this problem?

4. What is the true reason for the purposed remedy?

The aim of the rule is to examine the circumstances that lead to the adoption of the legislation in
Question.

Discuss the presumption that legislation does not oust or restrict the jurisdiction of the courts. In

Your answer, explain the effect of the Constitution on this presumption. Refer to case law.
CHAPTER 6 – BASIC PRINCIPLES

RULES & PRINCIPLES APPLICABLE TO THE INTIAL / FIRST READING OF THE

LEGISLATIVE TEXT:

The meaning of the text –

4 rules / principles applicable to the first reading of the legislative text =

1. The initial meaning of the text

 The interpretation process starts with the reading of the legislation concerned

 The ordinary meaning must be attached to the words – interpreter should not attach an
artificial

Meaning to the text

 However – the context of the legislation (incl. all factors inside & outside the text) which
could

Influence & qualify the initial meaning of the provision, has to be taken into account right from
the
Outset

 In the case of technical legislation which deals with specific trade / profession – words that
have a

Specific technical meaning in that field which is different from the ordinary everday meaning
have

To be given that specialised meaning

2. Every word is important

 No word / sentence is regarded as redundant (superfluous / unnecessary)

 Sometimes it’s impossible to assign a meaning to every word because unnecessarily repetitive

Provisions are often added as a result of excessive caution = the purpose of the legislation should

Be the deciding factor in determining if a word is superfluous / not – this relates to the
presumption

That legislation does not contain useless / unimportant provisions

Secretary case: the principle that a meaning should be assigned to every word is not absolute

3. No addition / subtraction
 Words may not be added / subtracted from the legislation – this is based on separation of
powers

Principle

 The courts may not supply omissions in legislation at will – if, however, the purpose of the

Legislation is clear, the court is the last link in the legislative process, and should ensure that the

Legislative process reaches a just & meaningful conclusion

4. The continuing time-frame of legislation: the law is always speaking

Question of whether words in existing legislation should be interpreted according to their

present-day

Meaning, or whether they should retain the meaning they had when the legislation was passed?

Courts used to follow the general rule in Finbro case: AD held that unless later legislation
expressly

Provided otherwise, words in legislation had to be construed acc to their meaning on the day on
which the

Legislation was adopted

Finbro judgment was confirmed in Water Affairs case: intention of legislature had to be
determined in view
Of meaning of provision at the time when it was enacted

However – seems that courts might in future be less rigid=

Golden China case: the general purpose of an Act suggested that the definitions in that Act were
to be

Interpreted flexibly in order to deal with new technologies on a continuous basis, rather than to
interpret the

Provisions narrowly, forcing the legislature periodically to update the Act

Fourie case: an updated interpretation should be given to “ongoing Acts” (legislation that will
continue to

Apply in the future), except in the case of those rare statutes intended to be of unchanging effect
(“fixed-

Time Acts”)

All legislation has to be interpreted so as to promote the spirit & scope of the BOR – a supreme
Const (and

The values underpinning it) is not static –

Nyamakazi: a supreme const must be interpreted in the context & setting exiting at the time
when a case is

Heard, and not when the legislation was passed, otherwise the growth of society will not be taken
into acc
An enactment cannot auto be reinterpreted to keep up with changes in society – the rule of law
principle

Means that the courts must balance the dimension of futurity with legality issues such as
offences, penalties

& vested rights, as well with legal certainty

Balance btw the text & context –

Note: it’s not entirely true to argue that, prior to 1994, the courts subscribed only to the literal
approach to

Interpretation – in Jaga case (1950) the NB of contextual framework during interpretation was
emphasised

This does not mean that the legislative text is no longer signification – the text has to be
anchored to the

Context in question

Zuma case: CC confirmed that the text of the Const is of paramount importance in spite of the
fact that

S39(1) prescribes a purposive / contextual approach to const interpretation – the same applies to
statutory

Interpretation
The meaning of the words of the text should be weighed up against the context of the legislation

From the outset the legislation as a whole, the surrounding circumstances, const values & text
have to be

Considered to ascertain the purpose of the legislation

Stellenbosh Farmers case: court must give regard – on the one hand: meaning to words used –
and on the

Other hand: contextual scene which involves considering the language of the rest of the statute &
the

Matter of the statute, its apparent scope & purpose and within limts, its background – court must
strike a

Proper balance btw these various considerations & then ascertain the will of the legislature

Supporters of orthodox text-based approach accuse supporters of text-in-context approach of

indulging in

“free-floating” methods of interpretation which ignore the text of the legislation – this is not true
because

The fact that there needs to be a balance btw the text & context does not mean that the legislative
text may

Be ignored – after all, the context has to be anchored to the particular text in question
Legislation must be read as a whole –

To interpret a text in its context includes:

 The intra-textual context: the enactment as a whole, including its unique structure &
legislative

“codes”

 The extra-textual context: the rest of the existing law & other contextual considerations that
might

Be applicable

To see the bigger picture means that the interpreter must study the legislation as a whole – apart
from the

Legislation to be construed – the bigger picture includes the Const & all other relevant law
(including old

Order legislation & the CL)

In CL this is known as interpretation ex visceribus actus = “within the four corners of the Act” /
“from the

Insides of the Act”

(See practical examples on pg 128 & 130 – 131 of TB)

Presumption that legislation does not contain futile (useless) / nugatory (irrelevant) provisions –

This presumption encapsulates the basis of the most NB principle of interpretation: the court has
to

Determine the purpose of the legislation and give effect to it

This presumption is an acknowledgement that legislation has a functional purpose & object

If there are 2 possible interpretations – the court must try, if it’s reasonably possible, to adopt an

Interpretation that will render the legislation effective

Forlee case:

F was found guilty of contravening Act 4 of 1909 for selling opium – on appeal his lawyer
argued that F had

Not committed an offence because the Act in question prescribed no punishment

Court relied on presumption against futility & found that a specific offence had been created by
the

Legislature – the absence of a prescribed penal clause did not render the Act ineffective because
the court

Had discretion in imposing such a suitable form of punishment as it deemed fit

Decision raised widespread criticism because the rule nulla poena sine lege (if there is no
penalty, there is

Not crime) was not adhered to – although the presumption and the nulla peona sine lege rule
applied in this

Case, the nulla poena sine lege rule forms an essential part of the principle of legality which aims
to prevent

The arbitrary punishment of people & to ensure that criminal liability & the imposition of
punishment are in

Line with existing & clear rules of law – this rule should have trumped the presumption against
futile results

Prins case:

P was charged ] with contravening Criminal Law (Sexual Offences & Related Matters)
Amendment Act – he

Objected to the charge arguing that neither the Act itself, nor any other provision of the Act,
provides for a

Penalty for the offence created by the Act

SCA held that s276 of CPA has a general empowering provision authorising courts to impose
sentences in all
Cases, whether in terms of the CL / legislation, where no other provision governs the imposition
of sentence

& consequently the Act did not violate the principle of legality by not prescribing the penalties
for those

Offences

2 other aspects of the decision must be noted:

1. The CL presumption against futile & nugatory legislation was never raised;

2. Case is a good example of reading different sets of legislation together in order to solve
an interpretation

Problem

Presumption enables courts to try to interpret legislation in such a manner that evasion of its
provisions is

Prevented

Presumption applies only if there’s more than 1 possible interpretation – it cannot be used by a
court to

Reinterpret legislation at will

Presumption also applies to subordinate legislation –

Maxim ut res magis valeat quam pereat applies = an interpretation which will not leave the
subordinate

Legislation ultra vires (and invalid), but rather intra vires and valid must be preferred – this
maxim applies

Only where 2 interpretations of a provision are possible

Presumption cannot be used to rescue an administrative act (conduct) which is defective &
invalid from the

Outset – consequently, any subordinate legislation in conflict with the enabling Act (or any other
legislation)

Will also be invalidated.

CHAPTER 7

Judicial law-making during concretisation

CONTENTS Chapter7

7.1 WHAT IS CONCRETISATION? 50

7.2
7.3 THE LAW-MAKING FUNCTION OF THE COURTS 50
7.4
7.2.1 The orthodox viewpoint 51
7.2.2 The purposive viewpoint 51

7.2.3 The myth that courts merely interpret the law 51

7.2.4 Factors that support and limit judicial law-making during

Statutory interpretation 52

7.3 POSSIBILITIES DURING CONCRETISATION 52

7.3.1 Modification of the meaning is necessary 52

What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Explain what the concretisation of legislation entails by discussing examples

From case law

(2) Discuss how the textualists and contextualists defend opposing views about

The law-making function of the courts

(3) Explain how courts modify the initial meaning of the legislative text in order

To give better effect to the purpose of the legislation

 (4) Explain and apply the rules of restrictive interpretation

(5) Explain and apply the rules of extensive interpretation

What is the central question to be answered?

At the best of times, language is an imperfect medium for the expression of our

Thoughts and intentions. In the case of legislation, the problem is compounded by

The fact that the legislature must achieve its aims through the use of language that is

General enough to cover a rich variety of conceivable cases in the future. While the

Legislature can anticipate typical cases, it cannot always anticipate the extraordinary

Cases that might arise. In these cases, the general language of the statute might lead

To absurd consequences; or it might simply include cases that need not be included

Under the legislation, or exclude cases that should be included. Consider the

Following example.

A quiet neighbourhood park is disturbed every Sunday afternoon by a group of

Residents who park their cars and motorcycles there and listen to music. To prevent
The park from being abused in this manner, the local government decides to issue a

New set of regulations dealing with access to public parks. They enact a regulation

That they believe will cover all possible cases. It reads as follows: “No vehicle is

Allowed in any public park within the boundaries of this municipality.”

Within the first week after the regulations have been adopted, the following

Incident makes the headlines. A father pushing his baby daughter in a pram was

Prevented from entering the park by the newly appointed security guard. The guard

Claimed that the regulation stated that no vehicles may enter the park. As a pram is

Also a type of vehicle, it could not be allowed to enter the park.

The problem is caused by the fact that the ordinary or literal meaning of the

Provision clearly includes prams, while the purpose of the legislation is only to

Prevent noisy motor vehicles from entering parks. There is thus tension between

The purpose of the legislation and the over-inclusive initial meaning of the
Legislation. How should the problem be resolved? In this chapter we study the rules

And principles that regulate how the text (chapter 6) and the purpose (chapter 7) of

The legislation should be correlated in the light of a given set of facts. This task

Forms the heart of the interpretive process.

Tip

This is an extremely important chapter of the textbook. It is divided into two parts:

The first part deals with the theoretical nature, or WHY questions of the

Interpretation process (yet again). It consists of paragraphs 7.1 and 7.2. The second

Part deals with the more practical aspects, or WHAT questions of the application

(or concretisation) of legislation. It consists of paragraph 7.3. Study the theoretical

Part of the chapter (i. e. the first part) in conjunction with the theoretical

Discussions contained in paragraphs 5.3 (the theories of interpretation), paragraph

6.1 (the difference between the intention of the legislature and the purpose of
Legislation), and paragraph 6.4.4 (the mischief rule).

7.1 WHAT IS CONCRETISATION?

In the concretisation phase all the hard and difficult thinking is done during the

Interpretation process. All the data collected during the interpretation process (the

Text of the legislation, the purpose of the legislation, the values of the Constitution)

Are brought together and applied to the specific facts at hand. However the process

Is characterised, the process is a creative one that involves the court’s exercise of its

Own interpretive discretion.

7.1 What is concretisation?

According to Du Plessis (1986: 149) concretisation is the

Final stage in the interpretation process. The legislation is

Realised (becomes a reality). During concretisation the

Legislative text and purpose, as well as the facts of a

Particular situation are brought together to reach a

Conclusion. Synonyms for concretisation are correlation,

Harmonisation, and actualisation.

Concretisation is the process through which the interpreter

Moves from the abstract to the practical reality to apply the

Particular legislation. After the text has been studied and all

The presumptions, aids and principles to contextualise and to

Determine the aim and purpose of the legislation employed,

The result is applied to the facts of the case to reach the

Correct solution. All the loose threads are gathered together

To finalise the process. The concretisation phase always takes

Place, irrespective of the approach to interpretation

Employed by the interpreter. However, the text-in-context

Supporters argue that contextualisation provides more data

To the interpreter with which to exercise a better discretion

During the interpretation and application of the legislation. In

Other words, the interpreter is better equipped to concretise

Accurately. Two commentators provide more insight into the

Process of concretisation:

Du Toit (1977: 11) points out that the essence of

Successful interpretation lies in the current realisation of thepossible meanings of the original
legislation. The meaning of

The text is tantamount to its application in a given concrete

Situation.

Page 160

Lategan (1980: 107) defines interpretation as the

Concretisation of the meaning of a text in a concrete, present

Situation during the last stage of the interpretation process.

Such a process is not simply the application of the provisions

Of the legislation, but rather the process of transition from

Interpretation to application.

During concretisation the abstract text of the legislation

And the purpose of the legislation (which was determined

Earlier in the process) are correlated with the concrete facts

Of the case within the framework of the prescribed

Constitutional principles and guidelines.

7.2 THE LAW-MAKING FUNCTION OF THE COURTS

It is misleading to describe this creative discretion as a law-making function. The

Court is not making new law, but merely realising or giving effect to the existing law

In new circumstances. However, Botha speaks of the “law-making function” of the

Courts and we will stick to this term in this module.This paragraph returns us to the debate
between the textual and the contextual

Approaches to statutory interpretation (study that debate again to refresh your

Memory – see paragraph 5.3 above). Botha clearly favours the contextual approach.

He sets out the two viewpoints and presents a critique of the textualist position
7.2 The law-making function of the

Courts

Not only do the supporters of the text-based and text-in-

Context approaches have different viewpoints about the use

Of text and context during interpretation, but the law-making

Role of the courts during statutory interpretation is another

Bone of contention between them.

7.2.1 The orthodox viewpoint

Little needs to be added at this point to Botha’s exposition. This approach rests on

The assumption that the meaning of legislation is fixed and fully developed when it

Is promulgated. The subsequent application of the legislation does not, therefore,

Add anything to the meaning of the legislation. The assumption here is that
Meaning is not created through interpretation.
7.2.1 The text-based viewpoint

The classic formulation of literalism insists that the clear and

Unambiguous text of legislation is equated with the intention

Of the legislature, as per Kotzé J in Bulawayo Municipality v

Bulawayo Waterworks Ltd 1915 CPD 435 445:

The intention of the legislature can alone be gathered from what it has

Actually said, and not from what it may have intended to say, but has not

Said.

Only if the words seem ambiguous and inconsistent may thecourt use the secondary and tertiary
aids to interpretation.

The court should interpret legislation only within the

Framework of the words used by the legislature. Any

Modifications, corrections or additions should be left to the

Relevant legislature (the iudicis est ius dicere sed non dare
Principle). This orthodox viewpoint was explained by Hannah

J in Engels v Allied Chemical Manufacturers (Pty) Ltd 1993

(4) SA 45 (Nm) 54A-B:

The basic reasoning behind this approach is that by remedying a defect which

The Legislature could have remedied, the court is usurping the function of the

Legislature and making law, not interpreting it.

7.2.2 The purposive viewpoint

Du Plessis claims that it is not sufficient to establish the plain meaning of the

Legislation or the purpose of the legislation without reference to the set of facts or

Concrete situation to which the legislation must be applied. The meaning of

Legislation does not exist in a fixed and fully developed form before that legislation

Is applied. In other words, it is NOT a question of establishing the meaning of the

Legislation (step 1) and then applying it to the facts (step 2). What the legislation
Means only becomes clear when it is applied. The act of application or

Concretisation of legislation creates, in effect, the meaning of the legislative text.

Labuschagne makes the same theoretical point. He distinguishes between the

Abstract text of the legislation (the structural statute) and the concrete realisation of

The legislation (the functional statute). The court does not create a new statute

When it gives the abstract structure a concrete or functional (i.e. working) meaning.

It merely completes the legislative process.

There are two reasons why courts must necessarily play this role in the law-making

Process. The first is that the legislature must inevitably use general language when it

Drafts legislation. What those general words or terms mean in specific

Circumstances is left to the courts to work out. The second reason is that legislation

Is drafted in the form of general rules that can apply to many different cases.

However, there is an inherent problem with all general rules. General rules

Frequently tend to be either over-inclusive (covering more than they were supposed
To) or under-inclusive (covering less than they were supposed to). It is the task of

The court to neutralise these effects and to ensure that the purpose of the rule is

Achieved. Sometimes this means modifying the initial meaning of the rule

(extending it where the rule is under-inclusive, and restricting it where the rule is

Over-inclusive). To describe this process as “law-making” is a misnomer. What the

Court is doing is merely to ensure that the purpose of the legislation is not defeated

Or obstructed by the general language that the legislature had to adopt.

7.2.2 The text-in-context viewpoint

The text-in-context school claims that the court does have a

Creative law-making function during statutory interpretation.

Page 161

Such a creative role by the courts does not mean that they

Take over the legislative powers of the legislature. Du Plessis

(1986: 143) explains this as follows:

The interpretation of statutes invariably—and by its very nature—involves

Much more than the mere reproduction of either the (supposed) plain

Meaning of language or the (supposed) intention of a legislature. It is much

Rather a reconstruction of the generally framed provisions of an enactment

With a view to their actual and specific application to and in a particular (and

Unique) concrete situation. This can still be done with due respect for the

Authority of the legislature, as long as the court bears in mind that its function

Is to interpret (ie to creatively reconstruct) the enactment without

Repromulgating it (ie making a ‘new’ one instead).

Labuschagne explains the theoretical foundations of this

Sometimes inevitable (but limited) law-making role of the

Judiciary follows:

He points out (1978: 62) that the court has a

Peripheral and subordinate law-making function and

Inevitably forms part of the legislative process in concrete

Cases, aimed at the fulfilment of needs in society (the reason

For the legislation).•

Later he states (1985: 60) that the court is the final

Link in the legislative chain and that it should be its task to

Ensure that the legislative process has a meaningful and just

End.

Furthermore, he also explains (1983: 422) and (1982:

402) that the legislation contained in the document is

Incomplete and only represents the initial structure of the

Statute. Only when the court applies the legislation does it

Become real and completely functional. The legislation is

Situation-bound and the process passes through stages—from

The generality of the structural statute to the particularity of

The functional statute. It is an ongoing case-to-case process.

So, in reality legislation is not interpreted, but shaped or

Moulded. The legislative process invariably begins with a

Need for legal order and ends every time with the fulfilment

Of that need by the court. The purpose of the legislation is

The directing principle throughout the process.

7.2.3 The myth that courts merely interpret the law

Botha identifies three false assumptions that textualists make about the so-called

Law-making function of the courts: (i) They confuse the modification of themeaning of
legislation with the literal modification of the text or language of the

Legislation. (ii) They are willing to accept a literal interpretation of a statute which
Goes beyond the purpose of the legislation. (iii) They rely on the doctrine of

Parliamentary supremacy, which has been replaced by the Constitution.

These points were all discussed in chapter 5 and need not be repeated here. You

Should be familiar with them by now; if not, return to chapter 5 and study the

Debate between the textualists and the contextualists once more.

7.2.3 The myth that courts merely interpret the

Law

Modification or adaptation of the initial meaning of the text

Involves the exercise of a creative judicial discretion. This

Discretion is nothing more than the authoritative application

Of legal principles: not an arbitrary expression of personal

Preferences, but the exercise of a legal discretion within the

Page 162

Boundaries and parameters of the purpose of the legislation.

The courts are confronted with the exercise of discretions on

A daily basis when they have to deal with criminal

Jurisdiction and the evaluation of evidence, as well as with

Judge-made law as a result of the ongoing development of

The common law.

Because of the limitations inherent in language, statutory

Interpretation necessarily involves a type of delegation by

The legislature to the judiciary about the final, specific

Application of a general rule. Although the legislature has the

Main legislative powers, those powers are not exclusive,

Since the courts play a supporting role—the legislature and

Judiciary are partners in the law-making process. This

Principle was explained very well in Zimnat Insurance Co Ltd

V Chawanda 1991 (2) SA 825 (ZSC) 832H-I:

It sometimes happens that the goal of social and economic changes is

Reached more quickly through legal development by the judiciary than by the

Legislature. This is because judges have a certain amount of freedom or

Latitude in the process of interpretation and application of the law. It is now

Acknowledged that judges do not merely discover the law, but they also

Make law. They take part in the process of creation. Law-making is an

Inherent and inevitable part of the judicial process.

When referring to the modification of the meaning during

Interpretation (corrective interpretation), some of the older

Sources and case law refer to it as ‘modification of the

Language’ (woordwysigende uitleg). However, this is incorrect.

As will be explained below, it is not the language of

Legislation that is physically modified, but the meaning of the

Legislation which is adapted (reconstructed) during

Interpretation to give effect to the legislative purpose. The

Provision is not amended and repromulgated by the court,

Because that may be done only by the competent legislative

Body. The particular provision remains as it was originally

Promulgated by the legislative body; the meaning of the

Particular legislation is modified only for that specific,

Concrete situation. Devenish (1992: 96) puts it as follows:

Such modification does not amount to a usurpation of the legislator’s

Function, but to the legitimate exercise of judicial law-making of a

Complementary nature in order to give effect to intention or the presumed

Intention of the legislature.

Furthermore, Du Plessis (1986: 37) points out that the

Orthodox (text-based) viewpoint prohibiting any form ofmodification could result in an incorrect
and unjustifiable

Form of judicial law-making. When the court adopts an

Interpretation that does not give effect to the purpose of the

Legislation, legislation is concretised (ie law is made) that is

In conflict with the legislative purpose.

The Constitution should bring about more flexibility in this

Regard. The principle of parliamentary sovereignty has been

Replaced by that of constitutional supremacy. The aim and

Purpose of the legislation within the framework of the

Constitution is the paramount rule of statutory

Interpretation. In Matiso v Commanding Officer, Port

Elizabeth Prison (above) 597 and 598 the court dealt with

The contentious issue of judicial law-making:

In terms of the Constitution the Courts bear the responsibility of giving

Specific content to those values and principles in any given situation. In doing

So, Judges will invariably ‘create’ law . . . This does not mean that Judges

Should now suddenly enter into an orgy of judicial law-making, but that they

Should recognise that their function of judicial review, based on the

Supremacy of the Constitution, should not be hidden under the guise of simply

Seeking and giving expression to the will of the majority in Parliament.

7.2.4 Factors that support and limit judicial law-making during statutory

Interpretation

(a) Restrictions on the law-making powers of the courts

Botha wants to underline the fact that the so-called law-making function of

The court is not unbounded. For this reason, he lists six factors which serve

To restrict the creative discretion of the courts when abstract legislation is

Applied to concrete facts. Make sure that you understand and can discuss
Each of these factors.

(b) Factors which support judicial law-making interpretation

Botha discusses six factors that support judicial law-making. Make sure you

Understand and can discuss each of these factors.

You have now worked through the theoretical or WHY part of this chapter.

We hope that you understand the creative and flexible nature of the

Concretisation or application of legislation to any given set of facts. The rest

Of the chapter is essentially devoted to circumstances where the purpose of

The legislation can only be realised or implemented if the initial meaning of

The legislative text is modified. The chapter explains WHAT is done when

Legislation is concretised or applied.

7.2.4 Factors which support and limit judicial

Law-making during statutory interpretation

When the issue of judicial law-making is raised, the next

Inevitable question is: Where do you draw the line? Of

Course, another interesting question—maybe better suited

For a course in critical jurisprudence—should be: Who is

Drawing the lines? The law-making powers of the judiciary

Are neither based on personal whims, guess-work or gut

Feelings, nor do they imply a free-floating and unbridled

‘remodelling’ of legislation. There are a number of important

Factors that both support and restrict the law-making

Discretion of the courts. These factors should ensure that

Courts apply their law-making function within the boundaries

Set by the core principle underlying modificative

Interpretation; the aim and purpose of the legislation(intention of the legislature or legislative
scheme) must

Support the modification within the framework of the

Constitution.

Page 164

(a) Restrictions on the law-making discretion of the

Courts

The judicial law-making discretion of the judiciary is the

Exception to the rule, and is based on a number of

Fundamental principles:

The principle of democracy (the preamble and s 1 of

The Constitution) reminds us that democracy is one of the

Fundamental constitutional values. As a matter of fact, the

Preamble of the Constitution refers to a democratic and open

Society in which government is based on the will of the

People. Although the courts are the guardians of the

Constitutional values, they are not allowed to take over the

Constitutional role of the legislature. Sachs J explained this

Complex constitutional balance between court and legislature

In Du Plessis v De Klerk (above) para 18:

The function of the courts, I believe, is, in the first place, to ensure that

Legislation does not violate fundamental rights, secondly, to interpret

Legislation in a manner that furthers the values expressed in the

Constitution, and thirdly, to ensure that common law and custom

Outside of the legislative sphere is developed in such a manner as to

Harmonise with the Constitution.

The important principle of separation of powers ensures

That state power is shared between the three branches of

Government, resulting in formal built-in checks and balances

To curb abuse of power by the government (eg s 43 of the

Constitution deals with the legislative authority in the RSA).

A common-law presumption holds that the legislature

Does not intend to change the existing law more than is

Necessary.

The rule of law principle, including the principle of

Legality, should apply throughout.•

Froneman (1996: 15–22) points out that judicial law-

Making is not unbridled. Judicial officers are accountable and

Responsible for their actions on three levels: firstly, personal

Responsibility, because they have to take personal moral

Responsibility for their decisions; secondly, formal

Responsibility, consisting of the formal constitutional and

Other legislative controls over the judiciary; and thirdly,

Substantive accountability, in that judicial decisions are open

To public debate and academic criticism (with reference to

The constitutional values of accountability, responsiveness

And openness expressed in s 1(d) of the Constitution);

Penal provisions or restrictive provisions in the

Legislation,

Page 165

As well as the presumption against infringement of

Existing rights, are also factors which limit the

Discretion of the courts to modify the initial meaning of

The text.

(b) Factors which support judicial law-making

A number of factors (constitutional and otherwise) support

The law-making discretion of the courts during the

Interpretation of legislation. Some of these are the following:

The reading-down principle: ss 35(3) and 232(3) of the

Interim Constitution (the so-called ‘reading down’ clauses)

Provided that if legislation is on the face of it

Unconstitutional (because it conflicts with the fundamental

Rights and the rest of the Constitution respectively) but is

Reasonably capable of a more restricted interpretation which

Would be constitutional and valid, such restricted

Interpretation should be followed. These provisions have not

Been repeated in the Constitution of 1996. However, 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.

Section 39(2) of the Constitution states that during
interpretation the courts must try to reconcile the aim and
purpose of the legislation with the spirit and purport of the
Bill of Rights in particular.
The Bill of Rights is the cornerstone of the South
African democracy and the state must respect, protect,
promote and fulfil the rights in the Bill of Rights (s 7 of the
Constitution), and it applies to all law and binds the judiciary
as well (s 8(1) of the Constitution).
The Constitution is the supreme law of the land (s 2 of
the Constitution), which means the end of sovereignty of
Parliament and the slavish ‘his master’s voice’ role of the
courts.
The common-law presumption is that the legislature
does not intend futile, meaningless and nugatory legislation.
The independence of the judiciary (s 165(2) of the
Constitution) also strengthens the argument in favour of
judicial law-making during interpretation.
7.3 POSSIBILITIES DURING CONCRETISATION

Because you will be studying the different forms that modificative interpretation

Can take, it is not necessary to concentrate too much on paragraphs 7.3.1 and 7.3.3.
We shall therefore turn directly to paragraph 7.3.2.

7.3 Possibilities during concretisation

Concretisation is the last stage in the interpretation process,

When the facts of the case and the relevant legislation are

Harmonised (correlated) with the purpose of the legislation.

Page 166

The various possibilities during the concretisation phase of

Interpretation may also be influenced by the Constitution,

Because the final ‘result’ or outcome of the interpretation

Process may not be in conflict with the Constitution. In other

Words, the concretisation has to be constitutional.

Modificative interpretation (restrictive or extensive

Interpretation) may be applied only if it is permitted by the

Purpose of the legislation. That legislative purpose, however,may not be in conflict with the
Constitution.
7.3.1 Modification of the meaning is necessary

Modification of the initial meaning of the legislation will only take place where:

(1) The purpose of the legislation is clear; and (2) the initial meaning of the legisla-

Tion goes beyond the purpose of the legislation (it is over-inclusive) or the

Initial meaning falls short of the purpose of the legislation (it is under-

Inclusive).

In order to ensure that the purpose of the legislation is not frustrated by the

Language of the legislation, the meaning of the words used in the legislation

Must either be restricted (where the language is over- inclusive) or extended

(where the language is under-inclusive). In the first case we speak ofrestrictive interpretation and
in the second of extensive interpretation. Both

Are forms of modificative interpretation.

(a) Restrictive interpretation

Botha discusses two forms of restrictive interpretation. Both are known by

Established Latin phrases. You must learn these Latin phrases, since they are

Part of the everyday jargon of practising lawyers in South Africa and the rest

Of the world.

The cessante ratione rule (literally, “when the reason ceases to exist” rule)

If the purpose behind legislation falls away, the interpretive process cannot

Proceed (the aim of statutory interpretation is to give effect to the purpose

Of legislation). However, this does not mean that the legislation is no longer

In force. What should a court do in such circumstances? To answer this

Question, study the two sets of cases Botha refers to (the court must suspend

The operation of the legislation).

The eiusdem generis rule (literally, “of the same kind” rule)

In this paragraph, we return to the problem that legislatures cannot foresee

Every possible circumstance that might arise and are therefore forced to
Make use of broad and all-inclusive terms and formulations. To better

Understand this problem and the interpretive solution to it, complete the

Following activity
(b) Extensive interpretation

Botha discusses two types of extensive interpretation. Of these types, only

The first (interpretation by implication), needs to be studied. The principle

Remains the same

The initial meaning of the text is modified (in this case expanded) to include

Things which, on the face of it, fall outside the scope of the legislation but are

Actually implied by the legislative provision.

The first example is interpretation based on the principle of opposites (the ex

Contrariis rule or the inclusio unius rule).

The second example is interpretation based on the principle of necessary

Relationships (e.g. if a result is prohibited, all the means to bring about that

Result are implicitly also prohibited; if a specific end is prescribed, then all the

Means necessary to bring about the end are also prescribed).

7.3.1 No problems with correlation

There are no difficulties applying the provision to the facts

Within the framework of the purpose and the prescribed

Constitutional guidelines, and the process is completed. This

Is what happens in practice in the majority of cases.

Interpretation and application appear to occur unconsciously

And automatically. These cases in fact create the wrong

Impression that interpretation comes into play only if the so-

Called ‘plain meaning’ of the text is ambiguous or obscure.

ACTIVITY 7.1

(Restrictive interpretation)

Botha refers to the case of S v Kohler in paragraph 7.3.2. Read the discussion of the case

And then consider the following change in the facts. What would the situation have been if

The accused had not kept a peacock without a licence, but a cage bird such as a budgie or a

Cockatiel? Would the budgie or cockatiel be included under the phrase “any other bird” or

Would the principles of the eiusdem generis rule apply to restrict the wide scope of the

Provision?

FEEDBACK

Botha does not state what the purpose of the regulation is. To determine the purpose we will

Have to undertake the research that was set out in chapter 6. However, if we accept that all

The specific words in the list refer to the same category (poultry), then a case could be made

That budgies and cockatiels are cage birds and not poultry. On the basis of the eiusdem

Generis rule, this would mean that the provision would not apply to the keeping of such birds
(in spite of the broad and inclusive language used in the regulation).
7.3.2 Modification of the meaning is necessary

Modificative interpretation (modification of the meaning)

Occurs when the initial meaning of the text does not

Correspond fully to the purpose of the legislation; in other

Words, when the text provides either more or less than its

Purpose, or when the initial meaning of the text is in conflict

With the Constitution. So: if the purpose indicates that

Modification is necessary (and possible), there are only two

Possibilities—either the initial meaning of the text is reduced

(restrictive interpretation) or the initial meaning of the text

Is extended (extensive interpretation). These, in turn, may

Be subdivided into various forms of modification to be

Discussed below in detail.

When and why may the courts modify the initial meaning

Of the text? The sources cite various grounds such as

Ambiguity and absurdity, which may be combined in a single

Principle: if it appears that the initial meaning of the text will

Not give effect to the aim and purpose of the legislation. For

Example, in 6.2.4 (above) modification of the meaning was

Mentioned as one possible solution to conflicting provisions.

Ambiguity, vagueness and absurdity are the indicators that

The initial textual meaning should probably be modified.

However, the purpose of the legislation (within the

Framework of the Constitution) constitutes the qualifier. In

Other words, the purpose of the

Page 167

Legislation in question must be determined in each case,

Even if the initial meaning of the text at first glance seems to

Be clear. The initial textual meaning must always be

Compared with the purpose of the legislation to ensure that

Effect will be given to the aim of the legislation concerned

(Cowen 1980: 394). Only if there can be no doubt about the

Purpose of the legislation and if the text, context and

Constitution are compatible with the modified meaning, will

The court be entitled to deviate from the initial textual

Meaning. Ultimately these factors boil down to one thing:

Judicial law-making, in the guise of modificative (corrective)

Interpretation, is the exception to the rule.

(a) Restrictive interpretation

As has been mentioned, restrictive interpretation is applied

When the words of the particular legislation embrace more

Than its purpose. The meaning of the provision is then

Modified to give effect to the true purpose. Restrictive

Interpretation in general, as well as two specific forms of

Restrictive interpretation, will be discussed below.

Restrictive interpretation in general

Although the courts traditionally refer to two specific forms

Of restrictive interpretation, it is not limited to eiusdem

Generis and cessante ratione legis, cessat et ipsa lex (see

Below). Any interpretation which reduces (limits) a wider

Initial meaning of the text to the narrower purpose of the

Legislation, is by definition restrictive interpretation. In

Skinner v Palmer 1919 WLD 39 the court substituted ‘fifty-

Eight’ for ‘fifty-nine’, thus restricting the scope of the

Provision. A more fundamental change was effected in Trivett
& Co (Pty) Ltd v W M Brandt’s Sons & Co 1975 (3) SA 423

(A), when the court restricted the meaning of the phrase

‘every court of law in a British possession’ in s 2(1) of the

1890 Colonial Courts of Admiralty Act to read ‘every court of

The Republic of South Africa’.

Case law example:

A very interesting example of restrictive

Interpretation in general occurred in Klipriviersoog

Properties (Edms) Bpk v

Gemeenskapsontwikkelingsraad 1984 (3) SA 768

(T). The plaintiff claimed compensation for

Properties expropriated by the defendant in terms

Of the Expropriation Act 63 of

Page 168

1975. The expropriation was not the issue, but the

Court had to determine the date on which interest

Became payable on the amount of compensation.

Section 12(3) of the Expropriation Act provides that

Interest on the amount of compensation is

. . . [p]ayable from the date on which the state takes

Possession of the property in question in terms of section

8(3) or (5).

The plaintiff argued that the words ‘takes

Possession’ in s 12(3) referred to ‘being able to take

Possession’, but the defendant countered that the

Provision clearly refers to actual physical

Possession. The court held that it could never have

Been the intention of the legislature to allow the

.state to evade its liability to pay interest in a case

Such as this by simply not taking possession of the

Expropriated properties. The court decided that, in

The light of the intention of the legislature, it could

‘read’ the words ‘is able to’ into the meaning of the

Act. Section 12(3) would then in effect have the

Following meaning:

Interest on the amount of compensation is payable from

The date on which the state is able to take possession of

The property in question.

The plaintiff’s claim was upheld by the court.

Although the court supplied an omission, in effect

The ambit of the particular provision was restricted,

Because the nearly unlimited options available to

The state were reduced.

Cessante ratione legis, cessa et ipsa lex

This maxim literally means that if the reason for the law

Ceases (falls away), the law itself also falls away. Since

Legislation cannot be abolished by custom or altered

Circumstances, this rule is not applied in South African law in

Its original form. Legislation remains in force until repealed

By the legislature concerned (R v Detody (above)). On the

Other hand, abrogation of common law by disuse is possible.

In Green v Fitzgerald 1914 AD 88, the court found that the

Common-law rule that adultery is a crime no longer applies

In South Africa. In this case the cessante ratione rule was

Not applicable, because it dealt with common law, not statute

Law.

Page 169

The courts have from time to time applied the cessante

Ratione rule in an adapted form. In these cases the provisions

Were merely suspended as the purpose of the legislation had

Already been complied with in some or another way. Under

The circumstances it would have been futile or unnecessary

To apply the legislation.

Case law example:

A few examples of the application of this rule have

Occurred in respect of s 10(1) of the previous Stock

Theft Act 26 of 1923, which provided for a

Compensatory fine in addition to the other penalty.

In some cases the courts were faced with the

Problem of whether the compensatory fine still had

To be paid even when the stolen stock had been

Returned to its owner. In R v Maleka 1929 OPD 171

The court found that the object of the Act (ie

Compensation) had been complied with, and that

The compensatory fine was unnecessary. This

Decision was followed in R v Nteto 1940 EDL 304,

Where the court held that since the complainant

Had already been compensated, the purpose of the

Provision had been achieved in a different way, and

A compensatory fine was unnecessary.

In fact, the court merely suspends the operation (application)

Of the legislation—it is not invalidated (there is nothing

Wrong with the legislation), nor is it repealed (courts cannot

Repeal legislation). The legislation remains on the statute

Book, and will provide for future application where the

Purpose has not yet been complied with. However, this rule

Must be distinguished from, for instance, the case where

Someone did pay a traffic fine, but is wrongly accused of

Failing to pay the fine; here the cessante ratione rule will not

Apply. The legislation was correctly complied with, and the

Correct defence will simply be to submit the proof of payment

In court.

Case law example:

Another interesting example of the cessante ratione

Rule occurred in S v Mujee 1981 (3) SA 800 (Z). In

Terms of a court order (issued in terms of a

Maintenance Act) the accused had to pay a monthly

Maintenance fee for his child in an institution. The

Child was discharged from the

Page 170

Institution before the order lapsed. The accused

Promptly stopped the payment of maintenance, and

Was charged with violation of the court order. The

Court held that the cessante ratione rule also

Applies to a court order in terms of an Act, since it

Cannot be said that it is the intention of the

Legislature to keep an order in force if the reason

For it has fallen away. The accused was acquitted.

Eiusdem generis

The term eiusdem generis literally means ‘of the same kind’

And is based on the principle noscitur a sociis (words are

Known by those with which they are associated, or, more

Colloquially, ‘birds of a feather flock together’). This means

That the meaning of words is qualified by their relationship to

Other words—the meaning of general words is determined

When they are used together with specific words.

Apart from the general requirements to be met before the

Initial meaning of the text may be modified, other

Prerequisites for the application of this rule must also be

Satisfied:

The eiusdem generis rule can only be applied if the

Specific words refer to a definite genus or category. In

Colonial Treasurer v Rand Water Board 1907 TS 479 the

Court referred to such a genus as a ‘common quality’ or

‘common denominator’.

Case law example:

In Skotnes v South African Library 1997 (2) SA 770

(SCA) the court had to interpret s 2(1)(b) of the

Legal Deposit of Publications Act 17 of 1982 which

Required that a copy of every publication published

In the Republic be supplied free of charge to every

Legal deposit library if copies of such a publication

Are intended to be sold to members of the public.

The definition of ‘publication’ in the Act included ‘a

Printed book, newspaper, magazine, periodical,

Journal, pamphlet, brochure, sheet, card or portion

Thereof or any other similar printed matter’.

Page 171

The appellant refused to supply a free copy of a

Publication to the respondent, a legal deposit

Library, arguing that it was not a ‘printed book’ as

Defined in the Act. Counsel for the appellant argued

That the words following ‘printed book’ in the

Definition restrict its meaning. Since these items

Were all mass produced, inexpensive, machinery-

Produced publications involving essentially

Commercial printing, it created a distinct category

(genus). As a result of the distinct category, the

Eiusdem generis rule applies, the Skotnes book falls

Outside that category and the Act does not apply to

It.

However, the court took the other view. It

Pointed out that unless there is a distinct category

Formed by the specific words the eiusdem generis

Rule cannot be applied. The court held that the

Words following ‘printed book’ in the definition

Section did not clearly indicate a genus of printed

Material which would—through the application of

The eiusdem generis rule—restrict the meaning of

‘printed book’ to some species of that genus. The

Intention of the legislature with the Act was to build

Up a national collection of books providing a record

Of cultural and scientific activities. The scope and

Purpose of the Act did not support such a restrictive

Interpretation, and the eiusdem generis rule did not

Apply.

The specific words must not have exhausted the genus

(Carlis v Oldfield 4 HCG 379). In such a case, it is assumed

That the general words refer to a broader genus and

Therefore cannot be interpreted restrictively.

The rule can be applied even when a single specific

Word precedes the general words. In Director of Education,

Transvaal v McCagie 1918 AD 616, the court found that the

General words ‘other evidence’ in the provision ‘a university

Degree or other evidence of the necessary qualifications’ had

To be interpreted eiusdem generis. ‘Other evidence’ refers to

Something else in the same category as a university degree.

In Bugler’s Post (Pty) Ltd v Secretary for Inland

Revenue 1974 (3) SA 28 (A) it was held that the order in

Which the words occur is not important: the general words

May precede, appear amongst or follow the specific words.

In PMB Armature Winders v Pietermaritzburg City

Council 1981 (2) SA 129 (A), the Appellate Division stressed

The

Page 172

Requirement that the eiusdem generis rule should be

Applied only if the ‘legislature’s intention’ supports such

A restrictive interpretation. As a result the courts apply

This rule with circumspection.

Case law example:

In S v Kohler 1979 (1) SA 861 (T), the court heard

An appeal against the decision of a magistrate’s

Court. Kohler was found guilty of contravening a

Municipal by-law because he kept a peacock within

The municipal boundaries without the required

Licence. The by-law required a licence for keeping

Any fowl, duck, goose, turkey, guinea fowl,

Partridge, pheasant, pigeon or the chickens thereof,

Or any other bird on municipal premises. Read in its

Literal sense the words ‘any other bird’ in the by-law

Would have meant that even a budgie or parakeet

Required a licence. The defence argued that the

Specific words in the by-law created the category of

Poultry. Therefore eiusdem generis had to apply,

And since a peacock was not a species of poultry,

The municipal by-law did not apply to peacocks.

The court agreed that the specific words did

Indeed form the category of poultry, but the

Dictionaries consulted by the court referred to

Peacocks as ‘chicken-like decorative birds’. Since

There was a definite genus (ie poultry), the general

Words ‘any other bird’ were restricted to that genus.

A peacock is a species of that genus, and Kohler’s

Appeal against his conviction was dismissed by the

Court.

(b) Extensive interpretation

Extensive interpretation is the opposite of restrictive

Interpretation. What we have here are those instances where

The purpose is broader than the initial textual meaning of the

Legislation. The meaning of the text is then extended

(stretched or widened) to give effect to the purpose of the

Enactment. Du Plessis (2002: 237) points out that

Traditionally the courts were wary of extending the initial

Meaning of the text, because the conventional common-law

Tradition of legislative drafting was aimed at exhaustive and

Comprehensive enactments, without loopholes, to cater for as

Many future situations as possible. The two main categories

Of extensive interpretation are discussed below.

Page 173

Interpretation by implication

Interpretation by implication involves extending the textual

Meaning on the ground of a reasonable and essential

Implication which is evident from the legislation. Express

Provisions are therefore extended by implied provisions.

There are various grounds on which the provisions of the

Legislation may be extended by implication. However, they

Remain no more than indications; the legislation in its

Entirety and its purpose continue to be the decisive test as to

Whether provisions may be extended. These grounds overlap,

And largely deal with powers and authority, and are not

Always easy to prove:

Ex contrariis: Here the implications arise from

Opposites. If the legislation provides for a particular

Circumstance, by implication it provides the contrary

Provision for the opposite circumstance. This overlaps with

The principle ‘expression of the one thing by implication

Means the exclusion of the other’ (expressio unius est

Exclusio alterius), which is not a hard and fast rule but

Merely a prima facie indicator of meaning.

Ex consequentibus: If legislation demands or allows a

Certain result or consequence, everything which is

Reasonably necessary to bring about that result or

Consequence may be implied (in other words, instances

Where additional powers or authority are implied as a result

Of the initial express power or authority). The test is not

Usefulness or convenience, but necessity.

Case law example:

In Bloemfontein Town Council v Richter 1938 AD

195 the court found that where a municipality has a

Statutory right to contain a river for the purposes of

Water supply, it also, by implication, has a right to

Remove washed-up silt from the dam. In each

Instance the underlying principle is whether the

Conferred power can be exercised effectively.

Ex accessorio eius de quo verba loquuntur: If a

Principal thing is forbidden or permitted, the accessory thing

Is also forbidden or permitted.

Anatura ipsius rei: This refers to implied inherent

Relationships—for example, the power to issue a regulation

Implies the power to withdraw it.

Page 174

Ex correlativis: This arises from mutual or reciprocal

Relationships (eg prohibiting the purchase of certain things

Includes the prohibition of the sale of such goods).

Interpretation by analogy

This method of interpretation involves extending legislative

Provisions expressly applicable to particular circumstances to

Other analogous cases not expressly mentioned. In other

Words, if legislation applies to certain mentioned instances

And its purpose can apply equally to other unspecified

Instances, the legislation may be extended to such other

Instances on the basis of sameness of reason. Interpretation

By analogy is seldom applied by the courts and as such is of

Mere academic interest. In Joint Liquidators of Glen Anil

Development Corporation Ltd (in liquidation) v Hill Samuel

(SA) Ltd 1982 (1) SA 103 (A), the court confirmed that an

Omission may not be supplied through interpretation by

Analogy.

7.3.3 No modification of the meaning is

Possible

Clearly the discretion of the judiciary to modify or adapt the

Initial ordinary meaning of the text is limited. If the purpose

Of the legislation is not sufficiently clear or if it does not

Support a modification or adaptation of the initial meaning of

The text, the legislature has to rectify errors or to supply

Omissions in the legislation. If no modification of the

Meaning is possible, the court will have to apply the

Legislation as it reads. In such a case concretisation would

Inevitably be defective, because the text, purpose and the

Particular facts would not be fully harmonised. The law-

Making discretion of the judiciary is limited to the frame of

Reference of the purpose and no further. If the court cannot

Supply an omission in the particular legislation, the common

Law may, if necessary, be used to complete the concretisation

Process.
TEST YOURSELF

(1) Write a one-page note on the so-called “law-making function of the courts”.

Discuss the matter from

(i) A textualist perspective

(ii) A contextualist perspective

(2) Explain why concretisation is neither a logical nor a purely arbitrary activity

(with specific reference to factors that support and limit law-making during

The interpretation of statutes).

 (3) Explain the principles applicable to restrictive interpretation in the case of

(a) The cessante ratione rule

(b) The eiusdem generis rule

(4) In the Matiso case (paragraph 7.2.3) the court held that the judicial inter-

Preters of statutes can no longer deny their own creative role in the process,

But neither can they claim an unrestricted power of creative judicial law-mak-

Ing. If a judge is neither a passive agent for the legislature, nor an active law-

Maker in his or her own right, how should the relationship between the court

And the legislature be described?

(5) List and discuss the factors that limit judicial law-making during statutory

Interpretation.

(6) Explain what each of the following rules of statutory interpretation entails.

Refer to case law where possible:

 (a) The ex contrariis rule

(b) The eiusdem generis rule

© the cessante ratione rule

(c) The inclusio unius rule

€ the iudices est ius dicere rule

STUDY UNIT 7

Explain what the concretization of legislation entails by discussing examples from case law

Concretisation is the final state in the interpretation process. The legislation is realized (become

A reality). During concretization the legislative text and purpose, as well as the facts of a
particular

Situation are brought together to reach conclusion.

Concretization is the process through which the interpreter moves from the abstract to the

Practical reality to apply the particular legislation. After the text has been studied and all the

Presumptions, aids and principles to contextualize and to determine the aim and purpose of the
Legislation employed, the result is applied to the facts of the case to reach the correct solution.

The concretization phase always takes place, irrespective of the approach to interpretation

Employed by the interpreter.

Discuss how the textualists and contextualists defend opposing views about the law-making

Function of the courts

Not only do the supporters of the text-based and text-in-context approaches have different

Viewpoints about the use of text and context during interpretation, but the law-making role of the

Courts during statutory interpretation is another bone of contention between them.

THE TEXT-BASED VIEWPOINT

The classic formulation of literalism insists that the clear and unambiguous text of legislation is

Equated with the intention of the legislature as per Kotze J in Bulawayo Municipality v
Bulawayo

Waterworks Ltd 1915 CPD 435 445:

“the intention of the legislature can alone by gathered from what is has actually said, and not
from
What it may have intended to say, but has not said.”

Only if the words seem ambiguous and inconsistent may the court use the secondary and tertiary

Aids to interpretation. Any modifications, corrections or additions should be left to the relevant

Legislature (the iudicis est ius dicere sed non dare principle).

THE TEXT-IN-CONTEXT VIEW

The text-in-context school claims that the court does have a creative law-making function during

Statutory interpretation. Such a creative role by the courts does not mean that they take over the

Legislative powers of the legislature.

Labuschagne explains the theoretical foundations of this sometimes inevitable (but limited) law-

Making role of the judiciary as follows:

 He points out (1987: 62) that the court has a peripheral and subordinate law-making

Function and inevitable forms part of the legislative process in concrete cases, aimed at

The fulfilment of needs in society (the reason for the legislation)

 Later he states (1985: 60) that the court is the final links in the legislative chain and that it

Should be its task to ensure that the legislative process has a meaningful and just end
 Furthermore, he explains (1983: 422) and (1982: 402) that the legislation contained in the

Document is incomplete and only represents the initial structure of the statute.

Explain how courts modify the initial meaning of the legislative text in order to give better effect
to

The purpose of the legislation

Modificative interpretation (modification of the meaning) occurs when the initial meaning of the

Text does not correspond fully to the purpose of the legislation; in other words, when the text

Provides either more or less than its purpose, or when the initial meaning of the text is in conflict

With the Constitution.

Modification of the initial meaning of the legislation will only take place where:

1. The purpose of the legislation is clear and

2. The initial meaning of the legislation goes beyond the purpose of the legislation (it is
over-
Inclusive) or the initial meaning falls short of the purpose of the legislation (it is under-

Inclusive).

In order to ensure that the purpose of the legislation is not frustrated by the language of the

Legislation, the meaning of the words used in the legislation must either be restricted (where the

Language is over-inclusive) or extended (where the language is under-inclusive). In the first case

We speak of restrictive interpretation and in the second of extensive interpretation. Both are
forms

Of modificative interpretation.

Explain and apply the rules of restrictive interpretations

The judicial law-making discretion of the judiciary is the exception to the rule, and is based on a

Number of fundamental principles:

 The principle of democracy (the preamble and s 1 of the Constitution). Although the courts

Are the guardians of the constitutional values, they are not allowed to take over the

Constitutional role of the legislature.

 The important principle of separation of powers ensures that state power is shared

Between the three branches of government, resulting in formal built-in checks and

Balances to curb abuse of power by the government.

 A common-law presumption holds that the legislature does not intend to change the

Existing law more than is necessary.

 The rule of law principle, including the principle of legality, should apply throughout.

 Judicial law-making is not unbridled. Judicial officers are accountable and responsible for

Their actions on three levels:

- Personal responsibility, because they have to take personal moral responsibility

For the decisions;

- Formal responsibility, consisting of the formal constitutional and other legislative

Controls over the judiciary;

- Substantive responsibility, in that judicial decisions are open to public debate and

Academic criticism.
 Penal provisions or restrictive provisions in the legislation, as well as the presumption

Against infringement of existing rights, are also factors which limit the discretion of the

Courts to modify the initial meaning of the text.

Explain and apply the rules of extensive interpretation

Extensive interpretation is the opposite of restrictive interpretation. What we have here are those

Instances where the purpose is broader than the initial textual meaning of the legislation. The

Meaning of the text is then extended (stretched or widened) to give effect to the purpose of the

Enactment.

Two main categories of extensive interpretation are:

1. Interpretation of limitation

Interpretation of limitation involves extending the textual meaning on the ground of a

Reasonable and essential implication which is evident from the legislation. Express

Provisions are therefore extended by implied provisions.

2. Interpretation by analogy
Write a one-page note on the so-called “law making function of the courts”. Discuss the matter

From:

Not only do the supporters of the text-based and text-in-context approaches have different

Viewpoints about the use of text and context during interpretation, but the law-making role of the

Courts during statutory interpretation is another bone of contention between them.

THE TEXT-BASED VIEWPOINT

The classic formulation of literalism insists that the clear and unambiguous text of legislation is

Equated with the intention of the legislature as per Kotze J in Bulawayo Municipality v
Bulawayo

Waterworks Ltd 1915 CPD 435 445:

“the intention of the legislature can alone by gathered from what is has actually said, and not
from

What it may have intended to say, but has not said.”

Only if the words seem ambiguous and inconsistent may the court use the secondary and tertiary

Aids to interpretation. Any modifications, corrections or additions should be left to the relevant
Legislature (the iudicis est ius dicere sed non dare principle).

THE TEXT-IN-CONTEXT VIEW

The text-in-context school claims that the court does have a creative law-making function during

Statutory interpretation. Such a creative role by the courts does not mean that they take over the

Legislative powers of the legislature.

Labuschagne explains the theoretical foundations of this sometimes inevitable (but limited) law-

Making role of the judiciary as follows:

 He points out (1987: 62) that the court has a peripheral and subordinate law-making

Function and inevitable forms part of the legislative process in concrete cases, aimed at

The fulfilment of needs in society (the reason for the legislation)

 Later he states (1985: 60) that the court is the final links in the legislative chain and that it

Should be its task to ensure that the legislative process has a meaningful and just end

 Furthermore, he explains (1983: 422) and (1982: 402) that the legislation contained in the
Document is incomplete and only represents the initial structure of the statute.
THE MYTH THAT COURTS MERELY INTERPRET THE LAW

Modification or adaptation of the initial meaning of the text involves the exercise of a creative

Judicial discretion. This discretion is nothing more than the authoritative application of legal

Principles: not an arbitrary expression of personal preferences, but the exercise of a legal

Discretion within the boundaries and parameters of the purpose of the legislation.

Because of the limitations inherent in language, statutory interpretation necessarily involves a

Type of delegation by the legislature to the judiciary about the final, specific application of a
general

Rule.

When referring to the modification of the meaning during interpretation (corrective

interpretation),

Some of the older sources and case law refer to it as ‘modification of the language’

(woordwysigende uitleg). It is not the language of legislation that is physically modified, but the

Meaning of the legislation which is adapted (reconstructed) during interpretation to give effect to

The legislative purpose.

Du Plessis (1986: 37) points out that the orthodox (text-based) viewpoint prohibiting any form of

Modification could result in an incorrect and unjustifiable form of judicial law-making.

Explain why concretization is neither a logical nor a purely arbitrary activity (with specific
reference

To factors that support and limit law-making during the interpretation of statutes)

When the issue of judicial law-making is raised, the next inevitable question is: Where do you

Draw the line?

The law-making powers of the judiciary are neither based on personal whims, guess-work or gut

Feelings, nor do they imply a free-floating and unbridled ‘remodelling’ of legislation. There are a

Number of important factors that both support and restrict the law-making discretion of the
courts.

These factors should ensure that courts apply their law-making function within the boundaries
set

By the core principle underlying modificative interpretation; the aim and purpose of the
legislation

(intention of the legislature or legislative scheme) must support the modification within the
Framework of the Constitution.

There are 2 factors to be considered:

1. Restrictions on the law-making powers of the court

 The principle of democracy (the preamble and s 1 of the Constitution). Although the courts

Are the guardians of the constitutional values, they are not allowed to take over the

Constitutional role of the legislature.

 The important principle of separation of powers ensures that state power is shared

Between the three branches of government, resulting in formal built-in checks and

Balances to curb abuse of power by the government.

 A common-law presumption holds that the legislature does not intend to change the

Existing law more than is necessary.

 The rule of law principle, including the principle of legality, should apply throughout.

 Judicial law-making is not unbridled. Judicial officers are accountable and responsible for
Their actions on three levels:
Personal responsibility, because they have to take personal moral responsibility

For the decisions;

- Formal responsibility, consisting of the formal constitutional and other legislative

Controls over the judiciary;

- Substantive responsibility, in that judicial decisions are open to public debate and

Academic criticism.

 Penal provisions or restrictive provisions in the legislation, as well as the presumption

Against infringement of existing rights, are also factors which limit the discretion of the

Courts to modify the initial meaning of the text.

2. Factors which support judicial law-making interpretation

A number of factors (constitutional and otherwise) support the law-making discretion of

The courts during the interpretation of legislation, some of these are the following:

 The reading-down principle: ss35(3) and 232(2) of the interim Constitution provided that
If legislation is on the fact of it unconstitutional (because it conflicts with the fundamental

Rights and the rest of the Constitution respectively) but is reasonably capable of a more

Restricted interpretation which would be constitutional and valid, such restricted

Interpretation should be followed.

 Section 39(2) of the Constitution states that during interpretation the courts must try to

Reconcile the aim and purpose of the legislation with the spirit and purport of the Bill of

Rights in particular.

 The Bill of Rights is the cornerstone of the South African democracy and the state must

Respect, protect, promote and fulfil the rights in the Bill of Rights (s 7 of the Constitution),

And it applies to all law and binds the judiciary as well (s 8(1) of the Constitution).

 The Constitution is the supreme law of the land (s 2 of the Constitution) which means the

End of sovereignty of Parliament and the slavish ‘his master’s voice’ role of the courts.

 The common-law presumption is that the legislature does not intend futile, meaningless

And nugatory legislation.

 The independence of the judiciary (s 165(2) of the Constitution) also strengthens the

Argument in favour of judicial law-making during interpretation.

Explain the principles applicable to restrictive interpretation in the case of:

a) The cessante ratione rule

This maxim literally means that if the reason for the law ceases (falls away) the law itself

Also falls away. Since legislation cannot be abolished by custom or altered circumstances,

This rule is not applied in South African law in its original form. Legislation remains in force

Until repealed by the legislature concerned.

The court merely suspends the operation (application) of the legislation – it is not

Invalidated (there is nothing wrong with the legislation) nor is it repealed (courts cannot

Repeal legislation).
b) The eiusdemm generis rule

The term eiusdem generis literally means ‘of the same kind’ and is based on the principle

Noscitur a sociis (words are known by those with which they are associated, or more
Colloquially ‘birds of a feather flock together’). This means that the meaning of words is

Qualified by their relationship to other words – the meaning of general words is determined

When they are used together with specific words.

Apart from the general requirements to be met before the initial meaning of the text may

Be modified, other prerequisites for the application of this rule must also be satisfied:

 the eiusdem generis rule can only be applied if the specific words refer to a definite genus

Or category;

 the specific words must not have exhausted the genus.

 The rule can be applied even when a single specific word precedes the general words.

 The order in which the words occur is not important: the general words may precede,

Appear amongst or follow the specific words.

 The eiusdem generis rule should be applied only if the ‘legislature’s intention’ support such

A restrictive interpretation.
In the Matiso case the court held that the judicial interpreters of statutes can no longer deny their

Own creative role in the process, but neither can they claim an unrestricted power of creative

Judicial law-making. If a judge is neither a passive agent for the legislature, nor an active law-

Maker in his/her own right, how should the relationship between the court and the legislature be

Described?

List and discuss the factors that limit judicial law-making during statutory interpretation

Explain what each of the following rules of statutory interpretation entails. Refer to case law
where

Possible:

a) The ex contrariis rule

Here the implications arise from opposites. If the legislation provides for a particular

Circumstance, by implication it provides the contrary provision for the opposite

Circumstance. This overlaps with the principle ‘expression of the other’ (expressio unius

Est exclusio alterius) which is not a hard and fast rule but merely a prima facie indicator of
Meaning.

b) The eiusdem generis rule

c) The term eiusdem generis literally means ‘of the same kind’ and is based on the principle

Noscitur a sociis (words are known by those with which they are associated, or more

Colloquially ‘birds of a feather flock together’). This means that the meaning of words is

Qualified by their relationship to other words – the meaning of general words is determined

When they are used together with specific words.

d) The cessante ratione rule

e) E) the inclusion unius rule
f)
g) F) the iudices est ius dicere rule

CHAPTER 7 – RESEARCH: ASCERTAINING THE LEGISLATIVE SCHEME

Even if the meaning of a legislative provision seems obvious & clear after the first reading of the
legislative

Text – the purpose behind the words must still be determined

The interpreter must establish whether the plain meaning of the text in fact reflects the actual
purpose of
The legislation (or, as our courts still frequently say, the real intention of the legislature)

Purpose of legislation is established through research (aka “contextualisation of the text”)

2 categories of material:

1. Internal aids = contains things that we find inside the text of the legislation as a whole –
i.e.

 the title;

 its preamble; and

 its chapter headings

2. External aids = contains things that we find outside the legislative text itself – i.e.

 parliamentary debate about the legislation;

 surrounding circumstances at the time the legislation was adopted; and

 other legislation such as the Interpretation Act

Textualists refer to internal & external aids as “secondary aids” & allow interpreters access to
these aids

Only when the text of the legislative provision itself is unclear / when its plain meaning leads to
absurd
Consequences in the circumstances

Contextualists encourage the use of all these aids in all circumstances as their aim is to achieve a
proper

Balance btw the text & its purpose

Before 1994 the courts were not consistent in their approach to the use of internal aid

The difference of opinion btw the literalists & contextualists as to when the interpreter may
invoke these

Aids has finally been settled by s 39(2) of the Const = prescribes a contextual approach to
statutory

Interpretation = the interpreter should use all the available aids at his disposal to ascertain the
purpose of

Legislation

INTERNAL AIDS

(a) The legislative text in another official language

Before the interim Const, legislation in SA was drafted in 2 official languages & the text in the
other

Language was used to clarify obscurities – aka “statutory bilingualism”

Original legislation

The following principle was expressly included in the 1961 & 1983 Const & the Interim Const:

Old order legislative texts were signed alternatively (in turn) in the languages in which they were
drafted &

The signed text was enrolled for record at the AD. In case of irreconcilable conflict btw the
various

Legislative texts, the signed one prevailed

1996 Const does not refer to irreconcilable conflicts btw texts of other legislation

S240 states that the English text will prevail if there’s inconsistency btw diff texts

S82 & s124 state that the versions of all new national & provincial legislation which have been
signed by the

President / a provincial premier has to be entrusted to the CC for safekeeping

The signed version will be conclusive evidence of the provisions of that legislation

The signed version of the legislative text does not carry more weight simply because that is the
one which

Was signed –The signed version is conclusive only when there is an irreconcilable conflict btw
the versions – the signed
Version is used as a last resort to avoid a stalemate (deadlock)

If one version of the text is wider than the other (i.e. one versions prescribes a penalty of
imprisonment & a

Fine; and the other only a fine) then the common-denominator rule is followed, and only a fine
will be

Imposed – the texts are read together to establish the common denominator

If the versions differ but there is no conflict, the versions complement one another & they have
to be read

Together – an attempt should be made to reconcile the texts with ref to the context & purpose of
the

Legislation

Even the unsigned version of the legislative text may be used to determine the intention of the
legislature

Because statutes are signed using alternative languages, amendment Acts may create a prob – i.e.
Afrikaans

Version of a statute was signed but the English version of the amendment Act was signed –
which one of the

Signed versions of the amendment Act will prevail in case of an irreconcilable conflict? There
are conflicting
Answers to this question, but the most acceptable solution was put forward in Silinga case: court
suggested

That the amendment Act be regarded as part of the original statute – the version of the statute
signed

Originally will prevail in the case of an irreconcilable conflict

Subordinate legislation

There are no statutory / constitutional rules re conflicting language versions of subordinate

legislation – in

Practice all versions of subordinate legislation will be signed & the signed text cannot be relied
on to resolve

Conflicts btw texts

If texts do differ, the must be read together

If there’s an irreconcilable conflict btw the various texts, the court will give preference to the one
that

Benefits the person concerned = this approach is based on the presumption that the legislature
does not

Intend legislation that is futile / nugatory

If the irreconcilable conflict leads to subordinate legislation that is vague & unclear, the court
may declare it

Invalid

Criticism:

All versions of legislative text should be read together from the outset, as they are all part of the
structure

Of the same enacted law-text

The arbitrary manner of conflict resolution (i.e. that the signed version automatically prevails) is
merely a

Statutory confirmation of a text-based approach, because the purpose of the legislation is ignored
if there is

An irreconcilable conflict btw the 2 versions of the legislative text – it could well be that the
unsigned version

Reflects the true purpose of the provision, and that the signed text is the incorrect one = in
following the

Signed version “blindly”, the purpose of the legislation could be defeated by the court

In light of the interpretation clause in s39(2) of Const, as well as the principle that legislation
should as far as
Possible be interpreted to render it constitutional, the following solution is suggested:

In the case of an irreconcilable conflict btw versions of the same legislative text, the text which
best

Reflects the spirit & purport of the BOR must prevail

The rules explained above will apply to old order legislation = if the existing Act was published
in Afrikaans

& English – all future amendment Acts will still have to be adopted & published in Afrikaans &
English

(because those amendments will eventually be incorporated into the Act)

Furthermore, in theory at least, subordinate legislation issued ito an enabling Act originally
published in

Afrikaans & English will also need to be in Afrikaans & English

Since 1998 new Acts of Parliament have been promulgated only in English

S59(1)(a) of Const obliges Parliament to facilitate public involvement in the legislative & other
processes –

One way of doing this is to publish translations of Bills introduced in Parliament

The Joint Rules of Parliament require that a translated version of a Bill that has been adopted
must be
Submitted together with the Bill to be signed into law = in practical terms this means that new
Acts of

Parliament are promulgated only in English

(b) The preamble

Preamble usually contains a programme of action / declaration of intent re the broad principles
contained

In the particular statute

Preamble may be used during interpretation of legislation since the text as a whole should be
read in its

Context

Although a preamble on its own can never provide the final meaning of the legislative text, post-
1994

Preambles should provide the interpreter with a starting point – it’s the key that unlocks the first
door in the

Process of statutory interpretation

Jaga – court considered preamble to be part of the context of the statute

In numerous recent cases the courts acknowledged the unqualified application of the
Constitution’s
Preamble

Seevnarayan – court rejected the argument that a preamble may be considered only if the text of
the

Legislations is not clear & ambiguous as an outdated approach to interpretation

© The long title

The long title provides a short description of the subject matter of the legislation

It forms part of the statute considered by the legislature during the legislative process

Role played by long title in helping to ascertain the purpose of the legislation will in each case
depend on

The info it contains

Courts are entitled to refer to the long title of a statute to establish the purpose of the legislation

(c) The definition clause

The definition section always starts with “In this Act, unless the context indicates otherwise…”

This is an explanatory list of terms in which certain words / phrases used in the legislation are
defined
A definition section is an internal dictionary for that Act only – definitions in other legislation do
not apply

A definition in the definition section is conclusive, unless the context in which the word appears
in the

Legislation indicates another meaning – in that case the court will follow the ordinary meaning
of the word

Oudtshoorn Municipality: it was held that a deviation from the meaning in the definition clause
will be

Justified only if the defined meaning is not the correct interpretation within the context of the
particular

Provision

(See example on pg 119 + 120 of TB)

€ Express purpose clauses & interpretation guidelines

Contain more detail & are more focused & should be more valuable during the interpretation
process

However, by itself none of them can be decisive – to take such a view would merely create a new
&

Sophisticated version of text-based interpretation

The interpreter must still analyse the legislative text (as a whole) together with all internal &
external aids

(See examples on pgs 120 – 121 of TB)

(f) Headings to chapters & sections

May be regarded as introductions to those chapters / sections

Within the framework of text-in-context, headings may be used to determine the purpose of the
legislation

In the past the courts held the literal viewpoint that headings may be used by the courts to
establish the

Purpose of the legislation only when the rest of the provision is not clear

Turffontein Estates: court pointed out that the value attached to headings will depend on the
circumstances

Of each case

(See example on pg 121 – 122 of TB)

(g) Schedules
Schedules serve to shorten & simplify the content matter of sections in legislation

The value of a schedule during interpretation depends on:

The nature of the schedule;

Its relation to the rest of the legislation; and

The language in which the legislation refers to it

The general rule is that schedules, which expound sections of an Act, should have the same force
of law as a

Section in the main Act

Schedules have to be consulted when interpreting provisions in the main part of the Act

In the case of conflict btw the schedule & a section in the main legislation – the section prevails
– one

Notable exception to this rule was s 232(4) of the 1993 Const which stated that for all purposes
the

Schedules were deemed to form part of the substance of the 1993 Const

In certain cases the particular schedule will state that it is not part of the Act & that it does not
have the

Force of law, in which case it is an external aid & it may be considered as part of the context

The names & types of legislation can be confusing – sometimes a schedule is a type of
subordinate
Legislation, and not part of the Act (as primary legislation)

(h) Paragraphing & punctuation

Customarily, punctuation was not considered to be part of the legislation – however, it is a

grammatical fact

That punctuation can affect the meaning of the text

Njiwa – court held that punctuation must be taken into acc during interpretation

Yolelo: AD held that an interpretation based on the purpose of the legislation prevails over an
interpretation

Based only on the division into paragraphs

Skipper: court held that since the punctuation was considered by the legislature during the
passing of the

Legislation, it must be considered during the interpretation

EXTERNAL AIDS

(a) The Constitution

The Constitution, being the supreme law, is the most NB aid to interpretation. No argument
about plain
Meanings & clear texts could prevent the Constitution from being used / referred to during
interpretation.

It prescribes how other legislation must be interpreted, contains the BOR & is the repository of
fundamental

Values.

S39(2) of Const contains a provision dealing with ordinary statutory interpretation

When interpreting any legislation, therefore, the Const, as the supreme law of the land, should be
consulted

The Const in general & the BOR in particular is the most NB external aid to statutory
interpretation

(b) Preceding discussions

The following constitute preceding discussions:

1. Debates about a Bill before Parliament;

2. Debates & reports of the various committees which form part of the legislative
process; and

3. Reports of commissions of inquiry

Question as to whether the courts may use such preceding discussions in construing legislations
& to what

Extent, has been the subject of lively debates in recent years.

Before the advent of the new constitutional dispensation, the courts were reluctant to seek
guidance in the

Debates which preceded the passing of the legislation in question. However, in recent decisions
the courts

Have invoked these aids.

As far as the reports of commissions of inquiry are concerned, the picture looks considerably
better, in that

The courts have shown some willingness to consult the reports of commissions of inquiry

One should distinguish btw debates during the legislative process on the one hand and reports of

Commissions of inquiry which preceded the passing of legislation on the other

 Debates during the legislative process

Some academic writers believe that debates preceding the acceptance of a Bill are important in

Establishing the intention of the legislature, especially when this is not evident from the wording
of

The legislation
However, in the past the use of debates was not accepted by the courts:

Bok: the use of preceding discussions in the interpretation process was rejected outright,
although

The court a quo in Moschke case had, in fact, taken preceding debates into account

The opposition to these debates may be disappearing:

Ngcobo: court referred to use of explanatory memoranda during the interpretation of statutes –
the

Weight of authority is very much against allowing such docs to be called in to aid in the

Interpretation of a statute – this authority has received considerable academic criticism – there
are

Also few authorities which seem to suggest a softening of attitudes by SA courts to certain of the

Docs which prece the passing of an Act

De Reuck: court used parliamentary debates, reports of task teams & views of academics when it

Had to interpret the Films and Publications Act

Western Cape Provincial Government: CC used parliamentary debates during interpretation

Minister of Safety & Security: CC referred to speech by a Minister during the second reading of
a Bill

Dzukuda: court referred to a report of the SA Law Commission & a ministerial speech in
Parliament

During the interpretation of a statute

 Commission reports

Hopkinson: court held that the prevailing law prevented the use of a commission report about the

Companies Act

Rand Bank: the court decided that the report of the commission of enquiry, which later resulted
in

The Prescription Act, was an admissible aid in construing the Act

Westinghouse: AD held that the report of a commission of enquiry which preceded the passing of

An Act may be used to establish the purpose of the Act, if a clear link exists btw on the one hand
the

Subject matter of the inquiry and recommendations of the report, and on the other, the legislation

Under consideration
Dilokong: court had to decide whether / not to use a report of a member of the Standing

Committee, which did not table an official report – court found that the evidence of a single

Member of the committee was inadmissible, since it merely represented his own subjective
opinion

Of the deliberations

The reasons given by the courts for not admitting such material are not very convincing (i.e. not
all

Debates might be relevant / useful during the interpretation of legislation) =

The courts are expected to use their discretion in imposing punishment, and to reach conclusions

Amidst conflicting evidence

During statutory interpretation the judiciary should be able to separate the good and bad in

Parliamentary debates

A speech by the Minister during the second reading of a Bill, as well as the explanatory
memoranda

Provided to members of Parliament may be useful in aiding understanding

If readily available, the deliberations & reports of the large number of standing, ad hoc, joint &
Portfolio committees of legislative bodies (which play an NB role during the legislative process)

Could be used to help ascertain the purpose of the resulting legislation

© Surrounding circumstances

Some courts have held that the historical background to the adoption of a particular statute is
equally NB

During the process of interpretation

This approach made its first appearance in the Heydon case

SA courts have also looked at the surrounding circumstances when interpreting legislation – i.e.
Santam

Case: court took into account the historical background which led to the adoption of the Act in
question

 Ubuntu

Indigenous African concept & refers to a practical humanist disposition towards the world,
including

Compassion, tolerance & fairness

Applied & explained by CC in Makwanyane case:

“Ubuntu translates as “humaneness” – in its most fundamental sense, it translates as

“personhood” and “morality”…while it envelops the key values of group solidarity,

Compassion, respect, human dignity, conformity to basic norms & collective unity, in its

Fundamental sense it denotes humanity & morality – its spirit emphasises respect for

Human dignity, marking a shift from confrontation to conciliation”

Concept of Ubuntu is not expressly mentioned in 1996 Const – but because Ubuntu was used in

Makwanyane case it forms part of the new SA constitutional jurisprudence

It may also be argued that Ubuntu lives on in the numerous references to human dignity in the

Const

It forms an NB bridge btw the communal African traditions & Western traditions, which focus on

The individual, and could be a very useful extra-textual aid to statutory & constitutional

Interpretation

 The mischief rule

The historical context of the particular legislation is used to place the provision in question in its

Proper perspective

Laid down in the 16th century in the famous Heydon’s case & forms one of the cornerstones of a

Text-in-context approach to interpretation

The mischief rule poses 4 questions that will help to establish the meaning of legislation:

1. What was the existing law (the legal position) before the legislation in question was
adopted?

2. Which problem (mischief (harm) or defect) was not adequately addressed by the existing
law

Before the new legislation was adopted?

3. What remedy (solution) is proposed by the new legislation to solve this problem?

4. What is the true reason for the proposed remedy?

The aim of the rule is to examine the circumstances that lead to the adoption of the legislation in

Question
The mischief rule has been applied on numerous occasions by the courts – i.e. Santam Insurance

Case: as a result of the incomprehensible language used in the Compulsory Motor Vehicle
Insurance

Act, the court examined the historical background of the Act in order to ascertain its purpose

 Contemporanea expositio
This is an explanation of the legislation which is given by persons in some / other way involved
in

The adoption of the legislation, or shortly afterwards during its first application

Explanatory memoranda issued by government departments & state law advisors, as well as the

First application of the new legislation are all examples

The publication of a Bill is often accompanied by the publication of an explanatory

memorandum

From its drafters – such a memorandum may help to determine the purpose of statutory
provisions

Of the Act resulting from the Bill

National Union of Mineworkers case: courts used the explanatory memorandum to interpret the

Labour Relations Act

 Subsecuta observatio

Refers to established administrative usage (or custom) over a period of time

The way legislation has been applied in practice – by the very agencies & departments entrusted

With its administration – may be a very good indication of its aim & purpose

Although the long-term use of legislation cannot dictate a particular interpretation to the courts,
it

May just be the deciding factor where 2 interpretations are possible

Typical examples of administrative usage are interpretation notes, circulars and explanatory
notes

Issued by SARS or the Registrar of Pension Funds

The purpose of interpretation notes is to provide guidelines to SARS employees & taxpayers re

Interpretation & application of the provisions of the various laws administered by SARS – these

Notes will ultimately replace all existing practice notes & internal circular minutes, to the extent
that

They relate to the interpretation of the various laws the notes will be amended from time to time
in
Line with policy developments & changes in the legislation

Pension fund circulars constitute best practice with regard to retirement funds as prescribed by
the

Registrar of Pension Funds from time to time and reflect the Registrar’s interpretation, discretion
/

Requirements – although the provisions of these circulars are adhered to by the industry “by

Agreement” with the Financial Services Board, they do not necessarily have any legal status as
such

& are not enforceable in any formal manner

Nissan case: court had to decide on the possible use of commission reports & subsecuta
observatio

– Plaintiff relied on exemption afforded by Income Tax Act – plaintiff relied on reports of

Commissions of inquiry & administrative practice (reports of the Board of Trade & Industry &
the

Way in which the provision had been interpreted by the Department of Internal Revenue) – court

Ruled that it could not be taken into account: the reports did not show which of the Board’s
findings
Had been accepted, and the Commissioner’s interpretation had been discarded too quickly to be

Used as part of subsecuta observatio and contemporanea expositio

 Historical interpretation

The term “travaux préparatoires” refers to the discussions during the drafting of an international

Treaty, but it is also increasingly used re the deliberations of the drafters of a supreme
constitution.

A supreme constitution, which includes a bill of fundamental rights, has been described as a
“living

Tree” – it is a dynamic document, which must be interpreted in the light of ever-changing

Circumstances, values & perceptions

However, if the deliberations of the constitutional drafters (the so-called “original intent”)
become

The deciding factor during the interpretation of such a constitution, there will be no development
&

Adaptability – the result will be that future generations will be bound by a single stroke of

Constitution-making, with no growth, dialogue, discourse, changes / flexibility possible

This means that the travaux préparatoires of the Const may be consulted as an external aid, but

They cannot be the deciding factor

Makwanyane case: court explained that the Mult-Pary Negotiating Process was advised by

Technical committees, and the reports of those committees on the drafts are the equivalent of the

Travaux préparatoires relied upon by international tribunals – such background material can
provide

A context for the interpretation of the Const and, where it serves that purpose, it may be used

(c) Dictionaries & linguistic evidence

In cases where words used in legislation are not defined, it’s permissible for courts to seek
guidance in

Dictionaries

Courts must use dictionaries in a contextual framework –

Transvaal case: Dictionary definitions serve to mark out the scope of the meanings available for
a word, but

The task remains of ascertaining the particular meaning & sense of the language intended in the
context of

The statute under consideration

De Beers case: the meaning of a word cannot be determined conclusively by its dictionary
meaning – the

Dictionary meaning is only a guideline – a dictionary cannot prescribe which of several possible
meanings of

A particular word should prevail – the context in which a word is used should be the decisive
factor

Fundstrust: the use of authoritative dictionaries is a permissible & helpful method for
interpreting statutes –

However, interpretation of statutes cannot be done by excessive peering at the language to be

interpreted

w/o sufficient attention to the contextual scene – after all, the interpreter has to ascertain the
meaning of

words / expressions in the particular context of the statute in which it appears

Makhubela:

Accused charged with being behind the wheel of a vehicle that was being pushed by others on a
public road,

w/o having a driver’s licence – he was found guilty of driving a vehicle on a public road w/o a
valid driver’s

lincence
On review, the court decided that the definition of “drive” as found in the Road Traffic Act as
inadequate & it

Consulted a dictionary as well – Court held that “drive” should not be construed only according
to its

Dictionary meaning, but should be understood within the context of the Act as a whole –
Legislature meant

That a person driving a vehicle driven by its own mechanical power should be in possession of a
driver’s

Licence – Conviction & sentence were set aside

Association of Amusement case:

Meaning of “pin-tables” was in dispute – court held that the testimony of language experts was
not

Admissible as an aid in construing legislation

Metro case: court decided that supplementary linguistic evidence to interpret a statutory
provision was not

Admissible

€ The source of a provision

Legislative drafters sometimes borrow extensively from other jurisdictions

SA courts may use the jurisprudence (legal system) developed under other jurisdictions as a
guideline when

Interpreting these provisions

For instance, sometimes the courts have to interpret a section of an English statute that has been

Incorporated word-for-word into SA legislation –

SA courts may use the interpretation given to the English legislation by the English courts as a
guideline if:

 The SA legislation is identical to the original English legislation;

 The interpretation of the English courts is not in conflict with SA common-law principles; and

 Ito s39(2) of the Const – the spirit, purport & objects of the BOR is promoted
(f) Explanatory memoranda, examples & footnotes

For explanatory memoranda – see contemporanea expositio above

Examples & footnotes:

Although the Acts in which footnotes are used expressly state that they do not form part of the
Act, they
May be used as external aids during the interpretation process

THE INTERPRETATION ACT 33 OF 1957

The Act is often invoked by the courts, especially when dealing with the computation of time

The Act applies to the interpretation of all original & subordinate legislation in SA

THE COMPUTATION OF TIME

GENERAL

The matter of the computation of time is very NB because lots of statutory enactments &
contractual

Provisions prescribe a time / period in which / after which certain actions are to begin / be
executed /

Abandoned / completed – the failure to discharge obligations within a prescribed period may
have dire

Consequences

The meaning of time units =

 Year

Consists of a cycle of 365 days (366 days every fourth (leap) year) & is based on the Gregorian
Calendar

Every year commences on 1 January & ends on 31 December

 Month

Could have 3 possible meanings –

1. S2 of the Act = “month” means a calendar moth (not a lunar month) – i.e. the twelve
unequal

Named periods which make up a year on the calendar; or

2. A lunar month of 28 days; or

3. A period of time stretching btw 2 corresponding dates in succeeding months of the year
(i.e. 9 June

To 9 July)

Meaning (3) is the one used the most frequently in law. However, it would be more appropriate
to

Use the term “calendar month” for the first alternative and “month” for the last one

 Day
Normally a day will be one of the 24-hour units of a week stretching from midnight to midnight,
or

It could be the hours of daylight

 Week

Traditionally a week as a part of a calendar runs from midnight on a Saturday to midnight on the

Next Saturday. However, for the purpose of computation of time the courts regard a week as any

Period of 7 successive days

THE STATUTORY METHOD – S4 OF THE ACT

“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 of the first day and exclusively also of every such Sunday / public holiday
S4 refers to days and not to periods of months or years – so the default method of calculation for
days (and

Weeks as units of days) is that statutory method

 The first day is excluded (the counting starts on the next day) and the last day is included

 If the last day falls on a Sunday / a public holiday – the period will move on to the next day

 Note: Sunday & public holidays falling within the time period will be counted

S1 of the Act provides that s4 will apply unless the contrary intention is clear from the particular
legislation

In 2 instances the general principle of “first day excluded, last day included” for days will not
apply (only if

The intention to deviate from the default is clear):

1. The rules of court provide that where a number of “court days” are referred to in a
contract / legislation,

The computation will not include Saturdays, Sundays & public holidays, nor can the period end
of those

Days;

2. Where there is a reference to a number of “clear days” or “at least” a number of days
between two
Events, those days will be calculated with the exclusion of both the first & the last days (i.e. if
it’s a statutory

Requirement that notice of 8 clear days be given for a meeting, both the day the notice is
delivered AND the

Day of the meeting are not counted as part of the 8 days)

Sometimes legislation expressly changes the default time calculation methods –

i.e. Income Tax Act provides that a Saturday will also not be counted during the calculation of
prescribed

time periods

COMMON-LAW METHODS

1. Ordinary civil method

Unless clearly indicated otherwise, this method is the default method for the calculation of
months & years

& is the opposite of the statutory method (used for days)

The first day of the prescribed period is included & the last day excluded

The last day is regarded as ending at the very moment it begins, as it were (at midnight of the
previous day)
De Beer:

Dealt with a claim for damages after a police car collided with a private car

Ito Police Act, the claim had to be instituted within 6 months

Collision took place on 5 August 1967 & summons was served on 5 Feb 1968 – on appeal the
SCA found that

The ordinary civil method should be used to calculate the time – the last day was therefore
excluded & the

Summons was therefore served 1 day too late – as a result, the action was refused

Pivot Point case:

The issue was the time period prescribed in the Companies Act which provided that the Registrar
may within

1 month after the date of such decision / order, apply to the Court for relief – court held that the
language

Of the Act clearly indicated that the ordinary civil method of calculating time was not to be used
because the

Provision stated “after the date of such decision” – if time is to run “after” a day or date, then
clearly that
Day / date must be excluded from the reckoning of time

2. Natural method

The prescribed period is calculated from the hour (or even minute) of an occurrence to the
corresponding

Hour / minute on the last day of the period in question

3. Extraordinary civil method

Both the first & the last day of the period concerned are included – this method of time
calculation is

Obsolete & is no longer used by the courts

Note: whichever method of computation of time is used, the purpose of the legislation will
remain the

Decisive matter

OTHER COMMON LAW PRESUMPTIONS

Common law presumptions are also external aids to interpretation. A few common law
presumptions have

Already been discussed above – refer back to those presumptions again.

CHAPTER 8

Peremptory and directory provisions

CONTENTS Chapter8

8.1 GENERAL INTRODUCTION 57

8.2 SOME GUIDELINES 58

8.2.1 Guidelines based on the language of the provision (Semantic

Guidelines) 58

8.2.2 Legal principles formulated by the courts (jurisprudential

Guidelines) 58

8.2.3 Presumptions about specific circumstances 59

What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Identify directory and peremptory provisions in legislation

(2) Explain the differences between directory and peremptory provisions and the
Different consequences of each

(3) Discuss and apply the rules and principles that are used to determine whether

A legislative provision is a directory or a peremptory provision

8.1 GENERAL INTRODUCTION

Legislation which contains the formal or procedural requirements that have to be

Followed before a legal privilege is obtained, or status achieved, often stipulates

What the consequences will be if these requirements are ignored. These

Consequences could range from criminal punishment to the nullity of the privilege

Granted or status achieved. However, legislation just as often fails to specify what

The consequences are where statutory requirements are ignored. These are the

Problem cases that interest us in this section.

The failure to adhere to statutory requirements sometimes results in the nullity of

The subsequent conduct. In such cases we say that the statutory provision is
Peremptory. However, the failure to adhere to statutory requirements does not

Always affect the validity of the subsequent conduct (see the example of Ex parte

Dow mentioned above). We say that a statutory provision is directory when

Substantial compliance with the provision is sufficient to render the subsequent

Conduct valid. Whether a statutory provision is directory or peremptory is

Therefore a crucial question. The same can be said of the question whether what

Was done was sufficient to qualify as substantial compliance

8.1 General introduction

In many cases legislation prohibits an act (conduct) or

Prescribes the manner in which it must be performed. If the

Legislation in question expressly prescribes what the

Consequences will be if the legislative requirements are not

Followed, there is no problem. Difficulties arise, however, if

The legislation fails to spell out what the consequences will

Be of a failure to comply with the prescribed formal

Requirements.

Hypothetical example:

You are in the process of renewing your driver’s

Licence, and you have complied with all the

Prescribed statutory requirements: two recent

Photographs, application forms completed in

Triplicate, compulsory eye test results, and proof of

Payment of the prescribed fees. However, instead of

The application forms being completed with a black

Pen, it is done in blue. If complete (exact)

Compliance with the prescribed requirements is

Rigidly enforced, your application could be thrown

Out, with the result that the process has to be

Started right from the beginning. However, if

Substantial compliance is sufficient, the fact that

Application forms were completed in blue instead of

In black might be condoned, leaving yourapplication process intact and on course.

A statutory provision that requires exact compliance is

Peremptory (obligatory or mandatory). Failure to comply

With a peremptory provision will leave the ensuing act

(action or

Page 176

Conduct) null and void. A statutory provision requiring

Substantial compliance only is merely directory. Non-

Compliance (or defective or partial compliance) with a

Directory provision will not result in the ensuing act being

Null and void; in other words, exact compliance is not a

Prerequisite

Case law example:

In terms of the Motor Vehicle Insurance Act 29 of

1942 a claim for compensation, accompanied by a

Medical certificate, had to be sent by registered

Post or delivered by hand. What would the position

Be if a claim were sent by ordinary post? In

Commercial Union Assurance Co v Clarke 1972 (3)

SA 508 (A) the court found that there was

Substantial compliance with the provision. It was

Not necessary to follow the requirements to the

Finest detail—as long as the purpose of the

Provision has been complied with.

Strictly speaking it is incorrect to refer to peremptory and

Directory provisions. As Wiechers (1985: 198) points out, in

Principle all legislative provisions are peremptory. If this

Were not the case, they would not be binding legal rules, but

Merely ‘non-obligatory suggestions for desirable conduct’.

The question is rather whether the prescribed formal

Requirements were complied with exactly or merely

Substantially. Unfortunately, the distinction between

Peremptory and directory has become firmly entrenched in

Practice.

However, in Weenen Transitional Council v Van Dyk 2002

(4) SA 653 (SCA) para [13] the court emphasised that these
Categories are merely guidelines: what is important is the

Purpose of the provisions in question, as well as the

Consequences if the statutory requirements are not strictly

Adhered to. The question is not whether mechanical (formal)

Compliance with the statutory requirements is required, but

Rather substantial compliance. Full compliance is not

Necessarily literal compliance (Comrie v Liquor Licensing

Board for Area 31 1975 (2) SA 494 (N) 496E-F), but

Substantial compliance (Commercial Union Co of SA v Clarke

(above)). In other words, substance over form: compliance

With the aim and purpose of the legislation within the

Context of the legislation as a whole. In Unlawful Occupiers,

School Site v City of Johannesburg 2005 (4) SA 199 (SCA)

Para 22 the court pointed out that—

Page 177

It is clear from the authorities that even where the formalities required by

Statute are peremptory it is not every deviation from the literal prescription

That is fatal. Even in that event, the question remains whether, in spite of the

Defects, the object of the statutory provision had been achieved.

It is also interesting to compare the courts’ approach to the

Interpretation of peremptory and directory provisions with

The approach adopted in other cases. The courts generally

Follow a text-in-context (purposive) approach to the

Interpretation of peremptory and directory provisions. The

Language of the provision is read in its context, and all intra

And extra-textual aids are used to determine the purpose of

The legislation. As Devenish (1992: 327-328) points out, in

The process the courts also draw on interpretative factors

Such as the principles of justice, fair play, convenience, logic,

Effectiveness and morality.

8.2 SOME GUIDELINES

The textbook contains three sets of guidelines which have, in the past, been used

By the courts as starting points for their investigation into compliance with

Legislation. The following outline of the guidelines below is based on the guidelines

As set out by Devenish and Botha.

8.2 Some guidelines

Although the purpose of the relevant legislation remains the

Deciding factor, the courts have developed a series of

Guidelines as initial tests or indicators of the purpose, almost

Like mini-presumptions. As a matter of fact, Devenish (1992:

234-237) does refer to some of these guidelines as

Presumptions. As Wiechers (1985: 198) points out, these

Guidelines are not binding legal rules but merely pragmatic

Solutions with persuasive force. Any guideline, test or

Indication will only be tentative. In Nkisimane v Santam

Insurance Co Ltd 1978 (2) SA 430 (A) the court held that

The intention of the legislature is always the decisive factor.

In Sentrale Kunsmis Korporasie (Edms) Bpk v NKP

Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367 (A) it was

Stressed that the form in which a requirement is set out will

Not necessarily be decisive. The context of the words and

Other relevant considerations also play a part when it is to be

Determined whether an apparently peremptory provision is,

In fact, peremptory.

The examples listed below are not binding rules but

Merely guidelines. The purpose of the legislation will always

Be the decisive factor in establishing whether a requirement

Is peremptory or directory. The general outline used by

Devenish (1992: 229-237) is followed in the rest of this

Chapter.
8.2.1 Guidelines based on the language of the provision (Semantic guidelines)

Peremptory provision Directory provision

A word or words with an imperative or

Affirmative character indicate a per-

Emptory provision. The inference is

That the strong language of these words

Indicates an obligation. For example,

Words like must or shall indicate a per-

Emptory provision.

Permissive words such as may indicate

Discretion and will be interpreted as

Being directory, unless the purpose of

The provision indicates otherwise. The

Permissive natures of the words/lan-

Guage used indicate that there is an

Element of discretion. Words like

“may” indicate a directory provision.

Words in negative form indicate a per-

Emptory provision. By the virtual nat-

Ure of these words, it is in indication

That something is not allowed.

The use of positive language in a provi-

Sion indicates a directory provision.

Positive language is more permissive,

And may thus once again indicate an el-

Ement of discretion.

A provision formulated in flexible or

Vague terms is an indication that the

Provision is directory.
8.2.1 Semantic guidelines

The courts have formulated a number of semantic guidelines.

These are based on the grammatical meaning of the

Language used in the provision:

Page 178

A word or words with an imperative or affirmative

Character indicate a peremptory provision (eg the words

‘shall’ or ‘must’) (Messenger of the Magistrate’s Court,

Durban v Pillay 1952 (3) SA 678 (A)). In Bezuidenhout v AA

Mutual Insurance Association Ltd 1978 (1) SA 703 (A), for

Example, the court found that ‘shall’ is a strong indication

That the provision is peremptory. In S v Takaendesa 1972 (4)

SA 72 (RAD) 78C–D this principle was explained as follows:

Where a statute prohibits the doing of something unless something else

Is done as a precedent to doing the thing prescribed, it is a general rule

Of interpretation that the provisions of the Act are obligatory and not

Directory.

On the other hand, in Motorvoertuigassuransiefonds v

Gcwabe 1979 (4) SA 986 (A) the court held that ‘shall’

Does not necessarily indicate a peremptory meaning.

Permissive words (such as ‘may’) indicate a discretion

And will be interpreted as being directory, unless the purpose

Of the provision indicates otherwise (Amalgamated Packaging

Industries v Hutt 1975 (4) SA 943 (A)).

Words in negative form indicate a peremptory

Connotation (Samuel Thomas Meyers v Pretorius & Etc 1944

OPD 144).

Positive language suggests that the provision is merely

Directory (R v Sopete 1950 (3) SA 796 €).

If the provision is formulated in flexible or vague

Terms, it is an indication that it is directory (Leibrandt v SA

Railways 1941 AD 9).

8.2.2 Legal principles formulated by the courts (jurisprudential guidelines)

These guidelines are more influential than the semantic guidelines and involve an

Examination of the consequences of the interpretation of the provisions.

Peremptory provision Directory provision

Adding a penalty to a prescription or

Prohibition is a strong indication that

The provision is peremptory.

If the wording of the provision is in

Positive terms, and no penal sanction is

Included for non-compliance with the

Requirements, it is an indication that the

Provision in question should be re-

Garded as being merely directory.

If the validity of the act would defeat

The purpose of legislation, this is an in-

Dication that the act will be null and

Void.
If strict compliance with the provisions

Would lead to injustice and even fraud

(and the legislation contains neither an

Express provision as to whether the ac-

Tion should be null and void nor a

Penalty) it is presumed that the provi-

Sion is directory.● The historical context of the provision can provide an indication as to whether

The provision is peremptory or directory.

8.2.2 Jurisprudential guidelines

Jurisprudential guidelines are tests based on legal principles

Which have been developed and formulated by the courts. In

Sutter v Scheepers 1932 AD 165 and Pio v Franklin 1949 (3)
SA 442 (C), certain tests or guidelines were proposed to
determine whether provisions are peremptory or directory.
These guidelines are more influential than the semantic
guidelines and involve an examination of the consequences,
one way or another, of the interpretation of the provisions:
If the wording of the provision is in positive terms, and
no penal sanction (punishment) is included for non-
compliance with the requirements, it is an indication that the
provision in question should be regarded as being merely
directory (ie in favour of validity of the ensuing act). Steyn
(1981: 197) questions this ‘test’, because without a penalty,
the only sanction to prevent the defeat of the legislative
scheme is to declare the act null and void.
Page 179
If strict compliance with the provisions would lead to
injustice and even fraud (and the legislation contains neither
an express provision as to whether the action would be null
and void nor a penalty), it is presumed that the provision is
directory (Johannesburg City Council v Arumugan 1961 (3)
SA 748 (W)).
In some instances, the historical context of the
legislation (in other words, the mischief rule) will provide a
reliable indication as to whether the provision is peremptory
or merely directory.
Adding a penalty to a prescription or prohibition is a
strong indication that the provision is peremptory (Rooiberg
Minerals and Development Co Ltd v Du Toit 1953 (2) SA 505
(T)). Nevertheless, this prima facie presumption was rebutted
by the purpose of the legislation in Standard Bank v Estate
van Rhyn 1925 AD 266. On the other hand, the addition of a
penal clause may be an indication that the legislature
intended the penalty to be sufficient and that the act should
not be declared null and void as well (Eland Boerdery (Edms)
Bpk v Anderson 1966 (4) SA 400 (T)).

If the validity of the act would defeat the purpose of

The legislation, this is an indication that the act (conduct)

Should be null and void (R v Lewinsohn 1922 TPD 336).

8.2.3 Presumptions about specific circumstances

Peremptory provision Directory provision

Where legislation confers a right, privi-

Lege or immunity, the requirements are

Peremptory and the right, privilege or

Immunity cannot be validly obtained

Unless the prescribed formalities are

Fully complied with. Where the free-

Dom of an individual is at stake the

Court will stress the peremptory nature

Of a requirement.

Where legislation protects the public

Revenue, a presumption against nullity

Exists, even if a penal clause has been

Added.

If a provision requires that a certain act

Must be performed within a prescribed

Time, and the court has not been em-

Powered to grant an extension of the

Time limit, the requirement is presumed

To be peremptory.

If other provisions in the legislation

Could become superfluous when non-

Compliance with prescribed require-

Ments results in the nullity of the act,

There is a presumption that the require-

Ments are merely directory.

While you must summarise and know these guidelines, it is also important to realise

That the application of these guidelines will not provide clear-cut answers to the

Question involved. Whether a statutory provision is directory or peremptory cannot

Be deduced from the provision itself, but depends on what is fair, just and practical

In the circumstances of each case, given the purpose of the statutory requirement.

In order to illustrate the application of this master-principle, we briefly discuss two

Cases from the textbook in more detail and we also refer you to the Constitutional

Court’s approach to the issue. These cases form part of your prescribed study

Material and must be carefully studied.

8.2.3 Presumptions about specific
Circumstances

The courts have also developed a number of mini-

Presumptions relating to specific practical circumstances. Like

The guidelines mentioned above, these are nothing more

Than initial assumptions—the purpose of the legislation may

Well prove otherwise:

Where legislation protects the public revenue (ie rates,

Taxes and levies due to the state), a presumption against

Nullity exists, even if a penal clause has been added

(McLoughlin v Turner 1921 AD 537).

Where legislation confers a right, privilege or immunity,

The requirements are peremptory and the right, privilege or

Immunity cannot be validly obtained unless the prescribed

Formalities are fully complied with (Orpen v Cilliers 20 SC

264). Where the freedom of an individual is at stake, the

Court will stress the peremptory nature of a requirement.

If other provisions in the legislation could become

Superfluous (meaningless) when non-compliance with

Prescribed requirements results in the nullity of the act,

There is a presumption that the requirements are merely

Page 180

Directory. In Hurwitz v SA Mining and General

Insurance Co Ltd 1958 (4) SA 136 (W) the court found

That s 3(2) of the Motor Vehicle Insurance Act 29 of

1942 was merely directory, since ss 24 and 31 would

Otherwise be superfluous.

If a provision requires that a certain act must be

Performed within a prescribed time, and the court has not

Been empowered to grant an extension of the time limit, the

Requirement is presumed to be peremptory (Le Roux v Grigg-

Spall 1946 AD 244).

The courts have developed a large number of guidelines to

Assist them to determine whether exact compliance or

Merely substantive compliance with prescribed statutory

Requirements is necessary. However, the supreme

Constitution as well as specific requirements in important

Legislation (such as the Promotion of Access to Information

And the Promotion of Administrative Justice Act) must always

Be borne in mind when the issue of exact compliance or

Substantive compliance is considered during statutory

Interpretation. The Constitution itself also contains a number

Of peremptory provisions. Some of the most important of

These are s 2 (‘This Constitution is the supreme law of the

Republic . . . and the obligations imposed by it must be

Fulfilled’), s 7(2) (‘The state must respect, protect, promote

And fulfil the rights in the Bill of Rights’) and s 39(2) (‘every

Court, tribunal or forum must promote the spirit, purport and

Objects of the Bill of Rights’).

ACTIVITY 8.1

(Peremptory or directory?)

Botha refers to Weenen Transitional Local Council v Van Dyk 2000 (3) SA 435 (NPD). In

This case a dispute arose about the procedure to be followed for the levying of taxes. The

Local Authorities Ordinance 25 of 1974 allowed municipalities to assess and levy, once a

Year, a general water and sewage rate upon all immovable property in their districts. The

Weenen municipality sued Van Dyk for payment of his outstanding rates and taxes for the
Year. Van Dyk denied that the taxes were due. He based this denial on the fact that the

Municipality had failed to follow the correct procedure for the assessment of the rates and

Taxes for that year. The ordinance required of the municipality to publish a notice in a

Newspaper stating that the assessment of the taxes for the year could be inspected. After

The inspection period, two further notices listing the total amount of tax on each property had

To published at least five days apart. The Act further stated that the rates and taxes will

Become due and payable a month after the publication of the last of these notices. The
Municipality, however, had published only one notice in which the final rates and taxes were

Set out and a period for inspection stipulated.

Formulate arguments for the municipality and for Van Dyk respectively (Van Dyk argues that

The statutory requirements are peremptory, while the municipality argues that they are only

Directory). Make use of the guidelines mentioned by Botha but also remember to ask what

The purpose of the publication requirement is and what would be fair, just and practical in the

Circumstances, given this purpose.

FEEDBACK

The judgment of the court was in favour of Van Dyk. Can you anticipate the reasons for the

Judgment? Here is a summary of the court’s judgment.

The imperative language of the provision (“shall publish”) had to be considered but had also

To be balanced against the object and importance of the provision as a whole (namely, to

Establish a democratic system of “checks and balances” and to render the municipality ac-

Countable to the ratepayers). These objectives could not be met by condensing the three

Required notices into one. To achieve the objectives of the provision, strict adherence to the

Publication requirements was required. This requirement was peremptory and the taxes

Were thus not due.

If you had trouble completing this activity, study the paragraph from Botha again

And then complete the following activity:

ACTIVITY 8.2
(A textual or purposive approach)

According to Botha the debate between the purposive and the textual approaches to

Statutory interpretation took an interesting turn when it came to the issue of statutory

Compliance. While the courts generally adopted a textual approach, they openly embraced

A purposive approach when called upon to decide whether a statutory provision should be

Treated as directory or peremptory. Botha refers to Commercial Union Assurance v Clarke

1972 (3) SA 508 (AD) as an example of this interesting historical fact.

In this case, an insurance company denied that it was liable to pay compensation to an

Injured road user because that road user failed to follow the correct procedure when his

Claim was instituted. Section 11 bis of the Motor Vehicle Insurance Act 29 of 1942 states that

A claim for compensation “shall […] be sent by registered post or by hand to the registered

Company”. It goes on to provide that no claim “shall be enforceable by legal proceedings if it

Commenced within sixty days from the date upon which the claim was sent or delivered to

The registered company”. In this case the notice was delivered in time, but was sent by
Ordinary post. The insurance company used this technical point to try to escape liability. It

Argued that the statutory mail requirement was peremptory. The court rejected the

Company’s argument and held that the provision was directory. Do you agree that the

Outcome of the case confirms Botha’s claim about the application of the purposive

Approach? Write a short note in which you list the main points of your agreement (or

Disagreement) with Botha.

FEEDBACK

The court held that “each case must be dealt with in the light of its own language, scope and

Object and the consequences in relation to justice and convenience of adopting one view

Rather than the other”. This means that the court must not look at the legislative text itself to

Try to solve the issue (as textualists tend to do), but must instead ask whether the

Consequences of requiring strict compliance would be fair (just) in the circumstances or

Practical (functional) in the circumstances (given the purpose of the legislative provision in
The first place). This is an open-ended question that can only be solved on the facts of each

Case. The purpose of the legislation is decisive in this regard. Botha is correct.

The court took the following into account:

(1) The imperative use of the language in the section (2) the purpose of the section,

Which was to protect claimants by ensuring that they had definite proof of the date

Upon which the 60 days period started to run (3) that if a claimant decided not to regis-

Ter the letter, he forfeited this protection himself and took the risk upon himself (4) that

The company was not prejudiced in any way by the fact that the letter was sent by ordi-

Nary post and received more than 60 days before legal proceeding commenced.

In the circumstances, to hold that the company could escape liability on the basis of a

Technicality which had not prejudiced them at all would be unfair and unjust. The court

Therefore held that the provision was directory only, and that it had substantially been

Complied with. The decisive thing to note is that the court essentially decided the case on

What would be fair (and practical) in the circumstances, given the overall purpose of the
Legislation. It thus applied a purposive approach, as Botha correctly suggests.

In African Christian Democratic Party v Electoral Commission 2006 (3) SA 305 (CC) the

Constitutional Court recently confirmed that the adoption of the purposive

Approach in our law has rendered obsolete all the previous attempts to determine

Whether a statutory provision is directory or peremptory on the basis of the

Wording and subject of the text of the provision. The case also illustrates how what

Is “fair and just” in the circumstances given the purpose of the legislative provision

(the test laid down in the Commercial Union and Weenen Muncipality cases) must

Now be determined with reference to the object, spirit and purport of the Bill of

Rights (see section 39(2) of the Constitution).

Section 14(1) of the Local Government: Municipal Electoral Act 27 of 2000 states

That a political party may contest a local election only if it had given notice of its

Intention to do so and if it had paid the required deposit before the stipulated
Deadline. During the 2006 municipal elections, the ACDP gave notice of its

Intention to participate in the Cape Town municipal election, but failed to include a

Separate deposit in a cheque which covered all the municipalities in which the party

Wanted to contest the election. When the mistake was discovered, the deadline for

The payment of deposits had come and gone. The Electoral Commission refused to

Register the ACDP for the election. The Commission argued that the statutory

Deposit requirement in section 14(1) was peremptory. The ACDP argued that the

Provision was directory and that it had substantially complied with the provision. It

Pointed out that, on the day of the deadline, there was a surplus available in its

Account at the Electoral Commission that could have been used as deposit for the

Cape Town elections. The ACDP appealed to the Electoral Court but the court

Also held that the deposit requirement was peremptory and that the ACDP had

Failed to comply with it. The ACDP then turned to the Constitutional Court.

The Constitutional Court held that the ACDP had (substantially) complied with the
Provisions of section 14(1) and ordered the Commission to register the party for

The Cape Town elections. According to the court, there is a general trend in our law

Away from “the strict legalistic to the substantive” (i.e. purposive). Given this trend,

The question was “whether what the [ACDP] did constituted compliance with the

Statutory provisions viewed in the light of their purpose”. The court held that the

Overall purpose of section 14(1), and of the Act as a whole, was to promote and

Give effect to the constitutional right to vote. The specific purpose of section 14(1)

And the deposit requirement was to establish which parties had the serious

Intention to participate in the elections. The ACDP had given proper notice of its

Intention to participate in the Cape Town elections and had paid over an amount to

The Electoral Commission in excess of what was required. They had established

Their serious intention to participate in the Cape Town elections in spite of the fact

That no specific mention was made of Cape Town. The provisions of section 14(1)
Must in the circumstances be treated as directory. As the ACDP had substantially

Complied with those provisions, it should be allowed to participate in the Cape

Town election.

A peremptory provision requires exact compliance; non-compliance with a per-

Emptory provision will result in the act being null and void. A directory provision;

Only requires substantial compliance. Non-compliance or part compliance with this

Provision will not result in the act being null and void.

Over the years some guidelines have been formulated to help determine and

Distinguish between directory and peremptory provisions. Even though the

Guidelines are important to help determine what type of provision it is, they are still

Mere guidelines; the most important factor is what is fair, just and practical as

Determined within the purpose of the legislation. This requires contextual or

Purposive interpretation, and the South African courts have traditionally used a

Purposive interpretation to determine whether non-compliance with a provision

Can be condoned, even during an era when the literal or textual method of

Interpretation was the accepted method in South Africa.

Section 39(2) of the Constitution states that “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.”

In African Christian Democratic Party v Electoral Commission the Constitutional Court

Confirmed that the test laid down in the Commercial Union and Weenen Municipality

Cases (what is fair and just in the circumstances) must be determined with reference

To the object, spirit and purport of the Bill of Rights. Thus, in instances where non-

Compliance is questioned, the following steps should be taken into consideration:

(1) Establish the central purpose of the provision in question.

(2) Establish whether that purpose would be obstructed by a literal interpretation

Of the provision; if so,

 (3) Adopt an alternative interpretation of the provision that promotes its central

Purpose; and

(4) Ensure that the purposive reading of the legislative provision also promotes

The object, purport and spirit of the Bill of Rights.

TEST YOURSELF

(1) Distinguish between strict compliance, substantial compliance and noncom-

Pliance with a legislative provision. Also indicate the consequences of each.

(2) What role do the semantic guidelines play when a court has to determine

Whether a statutory provision is directory or peremptory?

(3) Restate, in your own words, the facts and the reasoning of the court in the fol-

Lowing judgments:

(a) Weenen Transitional Local Council v Van Dyk

(b) Commercial Union Assurance v Clarke

© Ex parte Dow

(c) ACDP v Electoral Commission

STUDY UNIT 8

Identify directory and peremptory provisions in legislation

A statutory provision that requires exact compliance is peremptory (obligatory or mandatory).

Failure to comply with a peremptory provision will leave the ensuing act (action or conduct) null

And void.

Non-compliance (or defective or partial compliance) with a directory provision will not result in
the

Ensuing act being null and void, in other words, exact compliance is not a prerequisite.

Explain the differences between directory and peremptory provisions and the different

Consequences of each

Discuss and apply the rules and principles that are used to determine whether a legislative

Provision is a directory or a peremptory provisions

Although the purpose of the relevant legislation remains the deciding factor, the courts have

Developed a series of guidelines as initial tests or indicators of the purpose, almost like mini-

Presumptions. The purpose of the legislation will always be the decisive factor in establishing

Whether a requirement is peremptory or directory.

SEMANTIC GUIDELINES

The courts have formulated a number of semantic guidelines. These are based on the

Grammatical meaning of the language used in the provision:

 a word or words with an imperative or affirmative character indicated a peremptory

Provision – Messenger of the Magistrate’s Court, Durban v Pillay 1952; Bezuidenhout v

AA Mutual Insurance Association 1978;

 permissive words (such as ‘may’) indicate a discretion and will be interpreted as being

Directory, unless the purpose of the provision indicates otherwise –

Motorvoertuigassuransiefonds v Gcwabe 1979;

 words in negative form indicate a peremptory connotation – Samuel Thomas Meyers v

Pretorius & Etc 1944;

 Positive language suggests that the provision is merely directory – R v Sopete 1950;

 If the provision is formulated in flexible or vague terms, it is an indication that it is directory

– Leibrandt v SA Railways 1941.

JURISPRUDENTIAL GUIDELINES

Jurisprudential guidelines are tests based on legal principles which have been developed and

Formulated by the courts. In Sutter v Scheepers 1932 and Pio v Franklin 1949, certain tests or

Guidelines were proposed to determine whether provisions are peremptory or directory. These

Guidelines are more influential than the semantic guidelines and involve an examination of the

Consequences, one way or another, of the interpretation of the provisions:

 If the wording of the provision is in positive terms, and no penal sanction (punishment) is

Included for non-compliance with the requirements, it is an indication that the provision in

Question should be regarded as being merely directory;

 If strict compliance with the provisions would lead to injustice and even fraud (and the

Legislation contains neither an express provision as to whether the action would be null

And void nor a penalty), it is presumed that the provision is directory – Johannesburg City

Council v Arumugan 1961;

 In some instances, the historical context of the legislation (in other words, the mischief

Rule) will provide a reliable indication as to whether the provision is peremptory or merely

Directory;

 Adding a penalty to a prescription or prohibition is a strong indication that the provision is

Peremptory – Rooiberg Minerals and Development Co Ltd v Du Toit 1953;

 If the validity of the act would defeat the purpose of the legislation, this is an indicated that

The act (conduct) should be null and void – R v Lewinsohn 1922.

PRESUMPTIONS ABOUT SPECIFIC CIRCUMSTANCES

The courts have also developed a number of mini-presumptions relating to specific practical
Circumstances. The purpose of the legislation may well prove otherwise:

 Where legislation protects the public revenue (i.e. rates, taxes and levies due to the state)

A presumption against nullity exists, even if a penal clause has been added – McLoughlin

V Turner 1921;

 Where legislation confers a right, privilege or immunity the requirements are peremptory

And the right, privilege or immunity cannot be validly obtained unless the prescribed

Formalities are fully complied with – Orpen v Cilliers 20 SC 264;

 If other provisions in the legislation could become superfluous (meaningless) when non-

Compliance with prescribed requirements results in the nullity of the act, there is a

Presumption that the requirements are merely directory – Hurwitz v SA Mining and

General Insurance Co 1958;

 If a provision requires that a certain act must be performed within a prescribed time, and

The court has not been empowered to grant an extension of the time limit, the requirement

Is presumed to be peremptory – Le Roux v Grigg-Spall 1946.

The course have developed a large number of guidelines to assist them to determine whether

Exact compliance or merely substantive compliance with prescribed statutory requirements is

Necessary.

The Constitution itself contains a number of peremptory provisions.

Botha refers to Weenen Transitional Local Council v Van Dyk 2000 (3) SA 435 (NDP). In this

Case a dispute arose about the procedure to be followed for the levying of taxes. The Local

Authorities Ordinance 25 of 1974 allowed municipalities to assess and levy, once a year, a
general

Water and sewerage rate upon all immovable property in their districts. The Weenen
Municipality

Sued Van Dyk for payment of his outstanding rates and taxed for the year. Van Dyk denied that

The taxs were ude. He based this denial on the fact that the municipality had failed to follow the

Correct procedure for the assessment of the rates and taxes for that year. The ordinance required

Of the municipality to publish a notice in a newspaper stating that the assessment of the taxes of

The year could be inspected. After the inspection period, two further notices listing the total
Amount of tax on each property had to published at least five days apart. The Act further states

That the rates and taxes will become due and payable a month after the publication of the last of

These notices. The municipality, however, had published only one notice in which the final rates

And taxes were wet out and a period for inspection stipulated.

Formulate arguments for the municipality and for Van Dyk respectively (Van Dyk argues that the

Statutory requirements are peremptory, while the municipality argues that they are only
directory).

Make use of the guidelines mentioned by Botha but also remember to ask what the purpose of

The publication requirement is and what would be fair, just and practical in the circumstances,

Given the purpose.

The judgment of the court was in favour of Van Dyk. Here is a summary of the court’s judgment:

The imperative language of the provision (“shall publish”) had to be considered but had also to
be

Balanced against the object and importance of the provision as a whole (namely, to establish a

Democratic system of “checks and balances” and to render the municipality accountable to the
Ratepayers). These objectives could not be met by condensing the three required notices into

One. To achieve the objectives of the provision, strict adherence to the publication requirements

Was required. This requirement was peremptory and the taxes was thus not due.

According to Botha the debate between the purposive and the textual approaches to statutory

Interpretation took an interesting turn when it came to the issue of statutory compliance. While

The courts generally adopted a textual approach, they openly embraced a purposive approach

When called upon to decide whether a statutory provision should be treated as directory or

Peremptory. Botha refers to Commercial Union Assurance v Clarke 1972 (3) SA 508 (AD) as an

Example of this interesting historical fact.

In this case, an insurance company denied that it was liable to pay compensation to an injured

Road user because that road user failed to follow the correct procedure when his claim was

Instituted. Section 11 bis of the Motor Vehicle Insurance Act 29 of 1942 states that a claim for

Compensation “shall ……. Be sent by registered post of by hand to the registered company”. It

Goes on to provide that the claim “shall be enforceable by legal proceedings if it commenced
Within sixty days from the date upon which the claim was sent or delivered to the registered

Company.” In this case the notice was delivered in time, but was sent by ordinary post. The

Insurance company used this technical point to try to escape liability. It argued that the statutory

Mail requirement was peremptory The court rejected the company’s argument and held that the

Provision was directory. Do you agree that the outcome of the case confirms Botha’s claim about

The application of the purposive approach? Write a short note in which you list the main points
of

Your agreement (or disagreement) with Botha

The court held that “each case must be dealt with in the light of its own language, scope and

Object and the consequences in relation to justice and convenience of adopting one view rather

Than the other’. This means that the court must not look at the legislative text itself to try to
solve

The issue (as textualists tend to do), but must instead ask whether the consequences of requiring

Strict compliance would be fair (just) in the circumstances or practical (functional) in the

Circumstances (given the purpose of the legislative provision in the first place). This is an open-
Ended question that can only be solved on the facts of each case. The purpose of legislation is

Decisive in this regard. Botha is correct.

The court took the following into account:

1. The imperative use of the language in the section

2. The purpose of the section, which was to protect claimants by ensuring that they had

Definite proof of the date upon which the 60 days period started to run

3. That if a claimant decided not to register the letter, he forfeited this protection himself
and

Took the risk upon himself

4. That the company was not prejudiced in any way by the fact that the letter was sent by

Ordinary post and received more than 60 days before legal proceedings commenced.

In the circumstances, to hold that the company could escape liability on the basis of a
technicality

Which had not prejudiced them at all would be unfair and unjust. The court therefore held that
the
Provision was directory only, and that it had substantially been complied with. The decisive thing

To note is that the court essentially decided the case on what would be fair (and practical) in the

Circumstances, given the overall purpose of the legislation. It thus applied a purposive approach,

As Botha correctly suggests.

Distinguish between strict compliance, substantial compliance and non-compliance with a

Legislative provision. Also indicate the consequences of each

What role do the semantic guidelines play when a court has to determine whether a statutory

Provision is directory or peremptory?

SEMANTIC GUIDELINES

The courts have formulated a number of semantic guidelines. These are based on the

Grammatical meaning of the language used in the provision:

 a word or words with an imperative or affirmative character indicated a peremptory

Provision – Messenger of the Magistrate’s Court, Durban v Pillay 1952; Bezuidenhout v

AA Mutual Insurance Association 1978;

 permissive words (such as ‘may’) indicate a discretion and will be interpreted as being

Directory, unless the purpose of the provision indicates otherwise –

Motorvoertuigassuransiefonds v Gcwabe 1979;

 words in negative form indicate a peremptory connotation – Samuel Thomas Meyers v

Pretorius & Etc 1944;

 Positive language suggests that the provision is merely directory – R v Sopete 1950;

 If the provision is formulated in flexible or vague terms, it is an indication that it is directory

– Leibrandt v SA Railways 1941.

Restate, in your own words, the facts and the reasoning of the court in the following judgments:

1. Weenen Transitional Local Council v Van Dyk

2. Commercial Union Assurance v Clarke

3. Ex parte Dow

4. ACDP v Electoral commission

GUUIDELINES BASED ON THE LANGUAGE OF THE PROVISION (SEMANTIC
GUIDELINES)

Peremptory provision Directory provision

A word or words with an imperative or

Affirmative character indicate a peremptory

Provision. The inference is that the strong

Language of these words indicates an

Obligation. For example, words like must or

Shall indicate a peremptory provision

Permissive words such as may indicate

Discretion and will be interpreted as being

Directory, unless the purpose of the provision

Indicates otherwise. The permissive nature

Of the words/language used indicate that

There is an element of discretion. Words like

“may” indicate a directory provision

Words in negative form indicate a

Peremptory provision. By the virtual nature

Of these words, it is in indication that

Something is not allowed.

The use of positive language in a provision

Indicates a directory provision. Positive

Language is more permissive, and may thus

Once again indicate an element of discretion

A provision formulated in flexible or vague

Terms is an indication that the provision is

Directory

LEGAL PRINCIPLES FORMULATED BY THE COURTS (JURISPRUDENTIAL

GUIDELINES)

These guidelines are more influential than the semantic guidelines and involve and

Examination of the consequences of the interpretation of the provisions

Peremptory provision Directory provision

Adding a penalty to a prescription or

Prohibition is a strong indication that the

Provision is peremptory.

If the wording of the provision is in positive

Terms, and no penal sanction is included for

Non-compliance with the requirements, it is

An indication that the provision in question

Should be regarded as being merely

Directory.

If the validity of the act would defeat the

Purpose of legislation, this is an indication

That the act will be null and void

If strict compliance with the provisions would

Lead to injustice and even fraud (and the

Legislation contains neither an express

Provision as to whether the action should be

Null and void nor a penalty) it is presumed

That the provision is directory

The historical context of the provision can provide an indication as to whether the
provision is

Peremptory or directory

PRESUMPTIONS ABOUT SPECIFIC CIRCUMSTANCES

Peremptory provision Directory provision

Where legislation confers a right, privilege or

Immunity, the requirements are peremptory

And the right, privilege or immunity cannot

Be validly obtained unless the prescribed

Formalities are fully complied with. Where

The freedom of an individual is at stake the

Where legislation protects the public

Revenue, a presumption against nullity

Exists, even if a penal clause has been

Added.court will stress the peremptory nature of a

Requirement.

If a provision requires that a certain act must

Be performed within a prescribed time, and

The court has not been empowered to grant

An extension of the time limit, the

Requirement is presumed to be peremptory.

If other provisions in the legislation could

Become superfluous when non-compliance

With prescribed requirements results in the

Nullity of the act, there is a presumption that

The requirements are merely directory.

CHAPTER 8 – CONCRETISATION: CORRELATION OF TEXT & PURPOSE IN THE
LIGHT OF THE CONSTITUTION

WHAT IS CONCRETISATION?

Concretisation: (Synonyms: correlation / harmonisation / actualisation

 Process through which the interpreter moves from the abstract to the practical reality to
apply the

Particular legislation

 After the text has been studied & all the presumptions, aids & principles to
contextualise & to
Determine the aim & purpose of the legislation employed, the result is applied to the facts
of the

Case to reach a correct solution

 All the loose threads are gathered together to finalise the process

 Concretisation phase always takes place, irrespective of the approach to interpretation

employed by

The interpreter

Text-in-context supporters argue that contextualisation provides more data to the

interpreter with which to

Exercise a better discretion during the interpretation & application of the legislation (i.e.
the interpreter is

Better equipped to concretise accurately)

During concretisation the abstract text of the legislation & the purpose of the legislation
are correlated with

The concrete facts of the case within the framework of the prescribed constitutional
principles & guidelines

THE LAW-MAKING FUNCTION OF THE COURTS

It’s misleading to describe this creative discretion as a law-making function –

The court is not making new law, but merely realising / giving effect to the existing law
in new

Circumstances

Debate btw the textual & contextual approaches on the law-making role of the courts:

Note: Botha favours the contextual approach

Text-based (orthodox) viewpoint:

The clear & unambiguous text of legislation is equated with the intention of the
legislature

Bulawayo: The intention of the legislature can alone be gathered from what it has
actually said,

And not from what it may have intended to say, but has not said

Only if the words seem ambiguous & inconsistent may the court use the secondary &
tertiary aids to

Interpretation

The court should interpret legislation only within the framework of the words used by the
legislature –Any modifications / corrections / additions should be left to the relevant
legislature

Engels: the basic reasoning behind this approach is that by remedying a defect which the

Legislature could have remedied, the court is usurping the function of the legislature &
making law,

Not interpreting it

The subsequent application of the legislation does not, therefore, add anything to the
meaning of the

Legislation

The assumption here is that meaning is not created through interpretation

Text-in-context (purposive) viewpoint:

The court does have a creative law-making function during statutory interpretation – such
a creative role

Does not mean that they take over the legislative powers of the legislature

Du Plessis:
Interpretation of statutes involves more than the mere reproduction of the plain meaning
of

Language / intention of a legislature – it is rather a reconstruction of the generally framed

provisions

Of an enactment with a view to their actual & specific application to & in a particular
(and unique)

Concrete situation – this can still be done with due respect for the authority of the
legislature, as

Long as the court bears in mind that its function is to interpret (i.e. to creatively
reconstruct) the

Enactment w/o re-promulgating it (i.e. making a “new” one instead)

Labuschagne explains the theoretical foundations of the inevitable (but limited) law-
making function of the

Courts:

 The court has a peripheral (marginal) & subordinate law-making function & inevitably
forms part of

The legislative process in concrete cases, aimed at the fulfilment of needs in society (the
reason for

The legislation

 The court is the final link in the legislative chain & it should be its task to ensure that
the legislative

Process has a meaningful & just end

 The legislation contained in the document is incomplete & only represents the initial
structure of

The statute – only when the court applies the legislation does it become real &
completely
Functional – the legislation is situation-bound & the process passes through stages – from
the

Generality of the structural statute to the particularity of the functional statute – it is an

on-going

Case-to-case process – legislation is not interpreted, but shaped / moulded – the

legislative process

Invariably begins with a need for legal order & ends every time with the fulfilment of that
need by

The court – the purpose of the legislation is the directing principle throughout the process

2 reasons why the court must necessarily play this role in the law-making process:

1. Legislature must inevitably use general language when it drafts legislation – what
those general words /

Terms mean in specific circumstances is left to the courts to work out

2. Legislation is drafted in the form of general rules that can apply to many different
cases – however,

General rules frequently tend to be either over-inclusive (covering more than they were
supposed to) or

Under-inclusive (covering less than they were supposed to) = it’s the task of the court to
neutralise these

Effects & to ensure that the purpose of the rule is achieved – sometimes this means
modifying the initial

Meaning of the rule (extending it where the rule is under-inclusive & restricting it where
the rule is over-

Inclusive) – what the court is doing is merely to ensure that the purpose of the legislation
is not defeated /

Obstructed by the general language that the legislature had to adopt

The myth that courts merely interpret the law
Botha identifies 3 false assumptions that textualists make about the so-called law-making
function of the

Courts:

1. They confuse the modification of the meaning of legislation with the literal
modification of the text /

Language of the legislation

Modification / adaptation of the initial meaning of the text involves the exercise of a
creative judicial

Discretion – this discretion is nothing more than the authoritative application of legal
principles, the exercise

Of a legal discretion within the boundaries & parameters of the purpose of the legislation

Because of the limitations inherent in language, statutory interpretation involves a type of

delegation by the

Legislature to the judiciary about the final, specific application of a general rule

Although the legislature has the main legislative powers, those powers are not exclusive,
since the courts

Play a supporting role – the legislature & judiciary are partners in the law-making process

Zimnat: sometimes the goal of social & economic changes is reached more quickly
through legal

Development by the judiciary than by the legislature – this is because judges have a
certain amt of

Freedom / latitude in the process of interpretation & application of the law – law-making
is an

Inherent & inevitable part of the judicial process

It is not the language of legislation that is physically modified, but the meaning of the
legislation which is

Adapted (reconstructed) during interpretation to give effect to the legislative purpose

The particular provision remains as it was originally promulgated by the legislative body
– the meaning of

The particular legislation is modified only for that specific, concrete situation

2. They are willing to accept a literal interpretation of a statute which goes beyond the
purpose of the

Legislation

The orthodox (text-based) viewpoint prohibiting any form of modification could result in
an incorrect &

Unjustifiable form of judicial law-making – when the court adopts an interpretation that
does not give effect

To the purpose of the legislation, legislation is concretised (i.e. law is made) that is in
conflict with the

Legislative purpose

3. They rely on the doctrine of parliamentary supremacy which has been replaced by the
Const

Parliamentary sovereignty has been replaced by that of constitutional supremacy

The aim & purpose of the legislation within the framework of the Const is the paramount
rule of statutory

Interpretation

Matiso: ITO the Const, the courts bear the responsibility of giving specific content to
those values &

Principles in any given situation – in doing so, judges will invariably “create” law – this
means that
Judges should recognise that their function of judicial review, based on the supremecy of
the Const,

Should not be hidden under the guise of simply seeking & giving expression to the will of
the

Majority in Parliament

Factors which support & limit judicial law-making during statutory interpretation

The so-called law-making function of the court is not unbounded (absolute /

uncontrolled)

6 factors which serve to restrict the creative discretion of the courts when abstract
legislation is applied to

Concrete facts:Note: these factors should ensure that courts apply their law-making
function within the boundaries set by

The core principle underlying modificative interpretation = the aim & purpose of the
legislation (intention of

The legislature / legislative scheme) must support the modification within the framework
of the Const

1. Principle of democracy

One of the fundamental constitutional values – although the courts are guardians of the
constitutional

Values, they are not allowed to take over the constitutional role of the legislature

Du Plessis case: the function of the courts is:

(a) To ensure that legislation does not violate fundamental rights

(b) To interpret legislation in a manner that furthers the values expressed in the Const;
and
© to ensure that CL & custom outside of the legislative sphere is developed in such a
manner as to

Harmonise with the Const

2. Principle of separation of powers

Ensures that state power is shared btw 3 branches of government = formal built-in checks
& balances to

Curb abuse of power by the government

3. CL presumption holds that the legislature does not intend to change the existing law
more than is

Necessary

4. Rule of law principle (including principle of legality)

5. Judicial officers are accountable & responsible for their actions on 3 levels:

(a) Personal responsibility: they have to take personal moral responsibility for
their decisions

(b) Formal responsibility: consisting of formal constitutional & other legislative

controls over the judiciary;

And

© substantive accountability: judicial decisions are open to public debate & academic
criticism

6. Penal provisions / restrictive provisions in legislation & presumption against

infringement of existing

Rights

Limit discretion of the courts to modify the initial meaning of the text
POSSIBILITIES DURING CONCRETISATION

Modification of the meaning is necessary

Modificative interpretation (modification of the meaning) occurs when the initial

meaning of the text does

Not correspond fully to the purpose of the legislation or when the initial meaning of the
text is in conflict

With the Const

Only takes place where:

(a) The purpose of the legislation is clear; AND

(b) The initial meaning of the legislation goes beyond the purpose of the legislation (it is
over-inclusive)

Or the initial meaning falls short of the purpose of the legislation (it is under-inclusive)

The purpose of the legislation in question must be determined in each case, even if the
initial meaning of

The text at first glance seems to be clear. The initial textual meaning must always be
compared with the

Purpose of the legislation to ensure that effect will be given to the aim of the legislation
concerned
Only if there can be no doubt about the purpose of the legislation & if the text, context &
Const are

Compatible with the modified meaning, will the court be entitled to deviate from the
initial textual meaning

= judicial law-making, in the guise of modificative (corrective) interpretation, is the

exception to the rule

In order to ensure that the purpose of the legislation is not frustrated by the language of
the legislation, the
Meaning of the words used in the legislation must either be restricted (where the
language is over-inclusive)

(aka “restrictive interpretation”) or extended (where the language under-inclusive) (aka

“extensive

Interpretation”)

Restrictive interpretation:

Applied when words of legislation embrace more than its purpose – the meaning of the
provision is then

Modified to give effect to the true purpose

Any interpretation which reduces (limits) a wider initial meaning of the text to the
narrower purpose of the

Legislation, is by definition restrictive interpretation

Klipriviersoog case:

Plaintiff claimed compensation for property expropriated by defendant ito Expropriation

Act

Court had to determine date on which interest became payable on the amt of
compensation

Act provided that interest on the amt of compensation is payable from the date on which
the state takes

Possession of the property

Plaintiff argued that “takes possession” referred to “being able to take possession”, but
defendant countered

That it refers to actual physical possession

Court held that it could never have been the intention of the legislature to allow the state
to evade its
Liability to pay interest in a case such as this by simply not taking possession of the
expropriated property

Court held that in light of the intention of the legislature, it could “read” the words “is
able to” into the

Meaning of the Act – i.e. “Interest on the amt of compensation is payable from the date
on which the state

Is able to take possession of the property”

Plaintiff’s claim was upheld by the court

Although the court supplied an omission – in effect the ambit of the particular provision
was restricted,

Because the nearly unlimited options available to the state were reduced

2 specific forms of restrictive interpretation:

Cessante ratione legis, cessa et ipsa lex

Literally means that if the reason for the law ceases (falls away), the law itself also falls
away

Legislation cannot be abolished by custom / altered circumstances – as such, this rule is

not applied in SA

Law in its original form – legislation remains in force until repealed by the legislature

On the other hand, abrogation of CL by disuse is possible – Green case: court found that
CL rule that

Adultery is a crime no longer applies in SA – in this case the cessante ratione rule was not
applicable,

Because it dealt with CL law, not statute law

The courts have from time to time applied the cessante ratione rule in an adapted form –
the provisions
Were merely suspended as the purpose of the legislation had already been complied with
in some / another

Way & under the circumstances, it would have been futile / unnecessary to apply the
legislation

Example: Only if there can be no doubt about the purpose of the legislation & if the text,
context & Const are
compatible with the modified meaning, will the court be entitled to deviate from the
initial textual meaning
= judicial law-making, in the guise of modificative (corrective) interpretation, is the
exception to the rule
In order to ensure that the purpose of the legislation is not frustrated by the language of
the legislation, the
meaning of the words used in the legislation must either be restricted (where the language
is over-inclusive)
(aka “restrictive interpretation”) or extended (where the language under-inclusive) (aka
“extensive
interpretation”)
Restrictive interpretation:
Applied when words of legislation embrace more than its purpose – the meaning of the
provision is then
modified to give effect to the true purpose
Any interpretation which reduces (limits) a wider initial meaning of the text to the
narrower purpose of the
legislation, is by definition restrictive interpretation
Klipriviersoog case:
Plaintiff claimed compensation for property expropriated by defendant ito Expropriation
Act
Court had to determine date on which interest became payable on the amt of
compensation
Act provided that interest on the amt of compensation is payable from the date on which
the state takes
possession of the property
Plaintiff argued that “takes possession” referred to “being able to take possession”, but
defendant countered
that it refers to actual physical possession
Court held that it could never have been the intention of the legislature to allow the state
to evade its
liability to pay interest in a case such as this by simply not taking possession of the
expropriated property
Court held that in light of the intention of the legislature, it could “read” the words “is
able to” into the
meaning of the Act – i.e. “Interest on the amt of compensation is payable from the date
on which the state
is able to take possession of the property”
Plaintiff’s claim was upheld by the court
Although the court supplied an omission – in effect the ambit of the particular provision
was restricted,
because the nearly unlimited options available to the state were reduced
2 specific forms of restrictive interpretation:
Cessante ratione legis, cessa et ipsa lex
Literally means that if the reason for the law ceases (falls away), the law itself also falls
away
Legislation cannot be abolished by custom / altered circumstances – as such, this rule is
not applied in SA
law in its original form – legislation remains in force until repealed by the legislature
On the other hand, abrogation of CL by disuse is possible – Green case: court found that
CL rule that
adultery is a crime no longer applies in SA – in this case the cessante ratione rule was not
applicable,
because it dealt with CL law, not statute law
The courts have from time to time applied the cessante ratione rule in an adapted form –
the provisions
were merely suspended as the purpose of the legislation had already been complied with
in some / another
way & under the circumstances, it would have been futile / unnecessary to apply the
legislation
Example:

The Stock Theft Act provided for a compensatory fine in addition to the other penalty –
in some cases the

Courts had to decide whether the compensatory fine still had to be paid even when the
stolen stock had

Been returned to its owner

Maleka: court found that the object of the Act (i.e. compensation) has been complied
with, and
That the compensatory fine was unnecessary

Nteto: court held that since the complainant had already been compensated, the purpose
of the

Provision had been achieved in a different way & a compensatory fine was unnecessary

Court merely suspends the operation (application) of the legislation – it is not invalidated
(there is nothing

Wrong with the legislation), nor is it repealed (courts cannot repeal legislation)

The legislation remains on the statute book, and will provide for future application where
the

Purpose has not yet been complied with

This rule must be distinguished from, for instance, the case where someone did pay a
traffic fine, but is

Wrongly accused of failing to pay the fine – here the rule will not apply – the legislation
was correctly

Complied with, and the correct defence will simply be to submit the proof of payment in
court

Example where the rule occurred:

Mujee: in terms of a court order (issued ito a maintenance Act) the accused had to pay a
monthly

Maintenance fee for his child in an institution – the child was discharged from the
institution before the

Order lapsed – the accused stopped paying maintenance & was charged with violation of
the court order –

Court held that the cessante ratione rule also applies to a court order ito of an Act, since it
cannot be said
That it is the intention of the legislature to keep an order in force if the reason for it has
fallen away – the

Accused was acquitted

Eiusdem generis

Literally means “of the same kind” and is based on the principle noscitur a sociis (words
are known by those

With which they are associated – i.e. “birds of a feather flock together”)

The meaning of words is qualified by their relationship to other words – the meaning of
general words is

Determined when they are used together with specific words

Perquisites to be satisfied for the application of this rule:

 The specific words must refer to a definite genus or category

Skotness:

Court had to interpret the Legal Deposit of Publications Act which required that a copy of
every

Publication published in RSA be supplied free of charge to every legal deposit library if
copies of such

A publication are intended to be sold to members of the public – “publication” included

“a printed

Book, newspaper, magazine, periodical, journal, pamphlet, brochure, sheet, card or

portion thereof

Or any other similar printed matter” – appellant refused to supply a free copy of a
publication to

Respondent (a legal deposit library) arguing that it was not a “printed book” since the
words
Following “printed book” in the definition restrict its meaning – since these items were
all mass

Produced, inexpensive, machinery-produced publications involving essentially

commercial printing,

It created a distinct category (genus) – as a result of the distinct category, the eiusdem
generis rule

Applies, the Skotnes book falls outside the category & the Act does not apply to it

Court pointed out that unless there is a distinct category formed by the specific words the
eiusdem

Generis rule cannot be applied & held the words following “printed book” in the
definition section

Did not clearly indicate a genus of printed material which would – through the
application of the

Eiusdem generis rule – restrict the meaning of “printed book” to some species of the
genus – the
Intention of the legislature with the Act was to build up a national collection of books
providing a

Record of cultural & scientific activities – the scope & purpose of the Act did not support
such a

Restrictive interpretation & the eiusdem generis rule did not apply

 The specific words must not have exhausted the genus – in such a case, it’s assumed
that the

General words refer to a broader genus & therefore cannot be interpreted restrictively

 The rule can be applied even when a single specific word precedes the general words

Director of Education: court found that “other evidence” in the provision “a university
degree or
Other ecivdence of the necessary qualifications” had to be interpreted eiusdem generis –
“other

Evidence” refers to something else in the same category as a university degree

 Bugler’s case: held that the order in which the words occur is not NB – the general
words may

Precede, appear amongst or follow the specific words

 PMB case: the rule should be applied only if the legislature’s intention supports such a
restrictive

Interpretation – as a result the courts apply this rule with circumspection

Kohler:

K was found guilty of contravening a municipal by-law because he kept a peacock within
the municipal

Boundaries w/o the required license – the by-law required a licence for keeping any
fowl / duck / goose /

Turkey / guinea fowl / partridge / pheasant / pigeon / chickens thereof, or any other bird
on municipal

Premises

Read in its literal sense “any other bird” would have mean that even a budgie / parakeet
required a licence

Defence argued that that the specific words in the by-law created the category of poultry
– therefore

Eiusdem generis had to apply, and since a peacock was not a species of poultry, the
municipal by-law did

Not apply to peacocks

The court agreed that the specific words did indeed form the category of poultry, but the
dictionaries
Consulted by the court referred to peacocks as “chicken-like decorative birds” – since
there was a definite

Genus (i.e. poultry), the general words “any other bird” were restricted to that genus – a
peacock is a

Species of that genus & Kohler’s appeal against his conviction was dismissed by the
court

Extensive interpretation:

Instances where purpose is broader than the initial textual meaning of the legislation

The meaning of the text is then extended (stretched / widened) to give effect to the
purpose of the

Enactment

2 main categories:

Interpretation by implication

The textual meaning is extended on the ground of a reasonable & essential implication
which is evident

From the legislation – express provisions are therefore extended by implied provisions

Grounds on which provisions of the legislation may be extended by implication:

 Ex contrariis: implications arise from opposites – if the legislation provides for a

particular

Circumstance, by implication it provides the contrary provision for the opposite

circumstance
 Ex consequentibus: if legislation demands / allows a certain result / consequence,
everything which

Is reasonably necessary to bring about that result / consequence may be implied

Bloemfontein case: court found that where a municipality has a statutory right to contain
a

River for the purposes of water supply, it also, by implication, has a right to remove
washed-

Up silt from the dam – in each instance the underlying principle is whether the conferred

Power can be exercised effectively

 Ex accessorio eius de quo verba loquunur: if a principal thing is forbidden / permitted,

the accessory

Thing is also forbidden / permitted

 Anatura ipsius rei: implied inherent relationships – i.e. the power to issue a regulation
implies the

Power to withdraw it

 Ex correlativis: arises from mutual / reciprocal relationships (i.e. prohibiting the

purchase of certain

Things includes the prohibition of sale of such goods)

Note: these grounds are no more than indications – the legislation in its entirety & its
purpose are the

Decisive test as to whether provisions may be extended

Interpretation by analogy

Involves extending legislative provisions expressly applicable to particular circumstances

to other analogous

Cases not expressly mentioned – if legislation applies to certain mentioned instances &
its purpose can

Apply equally to other unspecified instances, the legislation may be extended to such
other instances on the
Basis of sameness of reason

Analogy is seldom applied by the courts & as such is of mere academic interest

Joint Liquidators: court confirmed that an omission may not be supplied through
interpretation by analogy
CHAPTER 9

Constitutional Interpretation

CONTENTS Chapter9

9.1 INTRODUCTION 68

9.2 WHY IS A SUPREME CONSTITUTION DIFFERENT? 69

9.3 HOW TO INTERPRET THE CONSTITUTION 70

9.3.1 Constitutional guidelines 70

9.4 AVOIDING UNCONSTITUTIONAL LEGISLATION 72

9.5 WHOSE CONSTITUTION IS IT ANYWAY? 72

What will we study in this chapter?

After having worked through this chapter you should be able to

(1) Explain what the Constitution itself says about its own interpretation

(2) Discuss what the courts have said about the interpretation of the Constitution

(3) Explain the close relationship between constitutional and statutory inter-

Pretation

(4) List and discuss the most important guidelines on constitutional inter-

Pretation
 (5) List and discuss the most important methods of constitutional interpretation

(6) Explain the principles relevant to corrective interpretation

(7) List and discuss the different forms of corrective interpretation

What is the basic question that must be answered?

When the Bill of Rights was first introduced into South Africa law, a number of

Legal scholars claimed that the historic event signalled the end of legal science in

South Africa. These scholars argued that the language of the Bill of Rights was so

Vague and morally loaded that it was impossible to decide constitutional disputes in

An objective and neutral manner. The interpretation and application of the Bill of

Rights was a purely subjective and political matter. In the light of these claims,

Consider the following problem:

Before its abolition, section 3(1) of the Abortion and Sterilization Act 1975, like

Most legislative provisions, contained a fairly detailed description of the

Circumstances in which an abortion could be performed legally (e. g. one such

Circumstance was where the pregnancy endangered the life of the woman and two

Medical doctors attested to that fact in writing). Similarly, section 20A of the Sexual

Offences Act 1957 contained a detailed prohibition of the public expression of

Homosexual affection (hugging, kissing etc). By applying the principles of statutory

Interpretation, we could determine with a high degree of certainty what these two
Statutory provisions meant and prohibited.

However, when the question of the constitutionality of these two criminal offences

Was raised, the inquiry suddenly involved section 14 of the Bill of Rights. The

Section simply states that “everyone has the right to privacy”. Does the

Criminalisation of abortion and of homosexual intimacy violate the right to privacy?

These questions can seemingly not be answered in the same deductive manner as

The question whether an abortion had been performed without the necessary

Medical approval. How do we determine what the “right to privacy” means? How

Should the constitutional provisions in the Bill of Rights be interpreted? Is it true

That the judges of the Constitutional Court merely decide matters such as these on

The basis of their personal politics? How else can one explain the different ways in

Which the right to privacy has been interpreted in modern constitutional

Democracies?
In the United States of America, for example, it was held in Roe v Wade that the

Prohibition on abortion violated a woman’s right to privacy, yet in Bowers v

Hardwick the same court held that the criminalisation of homosexual anal sexual

Intercourse in the privacy of one’s bedroom did not violate the right to privacy. In

South Africa, by contrast, it was held in National Coalition for Gay and Lesbian

Equality v Minister of Justice 1999 (1) SA 6 (CC) that the prohibition on public and

Private expressions of homosexual intimacy violated the right to privacy. However,

It was also held in S v Jordan 2002 (6) SA 642 (CC) that the prohibition of

Commercial sexual intercourse (prostitution) in the privacy of one’s bedroom did

Not violate the right to privacy.

These seemingly inconsistent judgments raise the question whether there is any

Method available for the rational, objective and legal interpretation of the open-

Ended provisions of the Bill of Rights. Are there any principles or methods that

Guide the interpretation of the Bill of Rights? Why, in any case, are we concerned
With constitutional interpretation in a course on statutory interpretation? These

Questions are discussed and answered in chapter 10 of the textbook.

9.1 INTRODUCTION

Botha begins the chapter by explaining the similarities and differences between

Statutory and constitutional interpretation. In the process he answers the question

Why we should study constitutional interpretation as part of statutory interpretation.

The Constitution is not a piece of legislation. It was not adopted by any of the

Recognised legislative bodies in the Republic, but by a specially constituted

Constituent Assembly. It is therefore not an Act of Parliament. The Bill of Rights

Also differs from ordinary legislation in the style in which it is drafted. The Bill of

Rights contains many broadly formulated value statements and few provisions of

Technical detail. Legislation, by contrast, contains many technical details and few

General value statements (the category of quasi-constitutional legislation might fal

Somewhere in between). The Bill of Rights is applicable to all legislation, while

Legislation is frequently designed to apply only to one narrowly defined problem

Area. These differences are captured in the quotes from the Matiso and Nortje

Cases in paragraphs 9.1.1 and 9.2.3 respectively.

In spite of these differences, it is essential for two reasons to study constitutional

Interpretation as an integral part of statutory interpretation. Section 39(2) of the

Constitution prescribes that the Bill of Rights should be promoted every time

Legislation is interpreted (refer back to the discussion above in paragraph 5.3). In

Order to promote a right in the Bill of Rights, one must first interpret that right to

Determine its content. The Constitution prescribes in section 39(1) how the Bill of

Rights should be interpreted. In order to meet the obligation in section 39(2) to

Promote the Bill of Rights, we must therefore inevitably turn to section 39(1) of the

Constitution. Secondly, because of the close relationship between statutory and

Constitutional interpretation, most legal scholars believe that it is best if the same
Purposive approach is followed in the interpretation of statutes and the

Constitution.

9.1 Introduction

Why is constitutional interpretation an issue? Interpretation

Is interpretation is interpretation, is it not? You just read the

Text, follow the well-known rules of statutory interpretation

And apply the maxims. However, it is not that simple: by now

It should be clear that interpretation of legislation (including

A constitution), is not mechanical and formalistic, but a

Comprehensive analysis of the text-in-context.

9.1.1 Constitutional interpretation and

‘ordinary’ statutory interpretation

Section 39(2) of the Constitution prescribes the filtering of

Legislation through the fundamental rights during the

Ordinary (run of the mill or conventional) interpretation

Process. Constitutional interpretation refers to the

Authoritative interpretation of the supreme Constitution by

The judiciary during judicial review of the constitutionality of

Legislation and government action in terms of s 172 of the

Constitution. This difference between constitutional and

Ordinary interpretation was explained by Froneman J in

Matiso v Commanding Officer, Port Elizabeth Prison (above)

597G-H:

The interpretation of the Constitution will be directed at ascertaining the

Foundational values inherent in the Constitution, whilst the interpretation of

The particular legislation will be directed at ascertaining whether that legislation

Is capable of an interpretation which conforms with the fundamental values or

Principles of the Constitution.

Du Plessis & Corder (1994: 88) point out that the differences
Between constitutional and ordinary interpretation must not

Be over-emphasised. Both deal with the interpretation of

Page 184

Legislative instruments. Because both forms of legislative

Interpretation are interrelated, it is preferable that both are

Members of the same broad interpretive family. In other

Words, it would be problematic to reconcile a text-in-context

(purposive) method of constitutional interpretation with a

Text-based method of ordinary interpretation. Section 39(2)

Ensures that, generally speaking, ordinary statutory

Interpretation should also be based on a text-in-context

Method similar to that used in constitutional interpretation.

De Ville (2000: 60) puts it as follows:

The constitutional theory which inspires the interpretation of the Constitution

Should . . . also inform statutory interpretation. The principles for the

Interpretation of statutes are to be derived from the Constitution.

Some commentators (for instance, Le Roux 2005: 526)

Argue that the distinction between the ordinary

Interpretation of legislation (in terms of s 39(2) of the

Constitution) and the remedial correction of legislation

(during constitutional review in terms of s 172 of the

Constitution) will reinforce the traditional text-based

Approach to interpretation in South Africa. In essence this

View is correct, but since the argument for a text-in-context

Approach for all forms of statutory interpretation in South

Africa is made strongly in this book, the distinction between

Ordinary interpretation and constitutional interpretation will

Be retained, at least for the purpose of a basic and initial

Understanding of interpretation of legislation.

9.1.2 The supreme Constitution and ordinary

Legislation

The status of the supreme Constitution in the legal order is

The main reason for the difference between constitutional

Interpretation and ‘ordinary’ interpretation. The old system

Of parliamentary sovereignty is no more. The Constitution is

Now the frame of reference within which everything must

Function, and against which all actions must be tested. It is

The prism through which everything and everybody must be

Viewed (Investigating Directorate: Serious Economic Offences

V Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor

Distributors (Pty) Ltd v Smit (above)). The Constitution is the

Lex fundamentalis (fundamental law) of the South African

Legal order. As such, it embodies the values of society, as well

As the aspirations, dreams and fears of the nation, and

Should in fact be the most important national symbol. It does

More than describe the institutional framework of

Government.
9.2 WHY IS A SUPREME CONSTITUTION DIFFERENT?

Botha explains that there are many reasons why the text of the Constitution is

Different from the text of ordinary legislation. It is the supreme text of the legal

Order. It sets out the organisational structures and procedures of the State (it is a

Formal power map). However, the Constitution also sets out the foundational

Values of the State (it contains a substantive ethos or moral and ethical map). It also
Sets out the aspirations of the nation (it contains language which is rich in

Symbolism). Ordinary legislation typically lacks the organisational, ethical and

Symbolic breadth of the Constitution. However, during the past decade, a number

Of Acts have been passed by Parliament that all contain a highly symbolic,

Aspirational and ethical message. These acts are known as quasi-constitutional

Legislation. A good example is the Employment Equity Act.

Food for thought

(Constitutional patriotism or nationalism)

This section is intended to stimulate further thinking. You do not need to study it

For the examination.

Botha says that the Constitution should be the most important national symbol and

Continues to discuss a number of metaphors that have been used to describe this

Central symbol. This is known as “constitutional patriotism”. Citizens of a

Constitutional democracy are patriotic about their constitution and its human rights
Culture, as opposed to a shared language, or history, or race, or leader (a good

Example of this kind of “constitutional patriotism” is the United States of America).

Constitutional patriotism is what distinguishes modern constitutional democracies

From older forms of nationalism and the nation states of 19th century Europe and

Their colonial empires. It is also what distinguishes the post-apartheid state from

The apartheid state. The latter was grounded on Afrikaner nationalism, and tried to

Reserve citizenship for a small section of the population on the basis of their

Patriotic allegiance to a shared history, language, religion and race. The post-

Apartheid state grants citizenship to all South Africans on the basis of their

Patriotism and commitment to the Constitution and the new human rights culture.

Do you believe that this “constitutional patriotism” is strong enough to resist the

Rise of new forms of exclusive nationalism in our society? Discuss this question

With fellow students.

9.2 Why is a supreme Constitution

Different?

A supreme constitution is not merely another legislative

Document, but the supreme law (lex fundamentalis) of the

Land. A constitutional state (which has a supreme

Constitution) is underpinned by two foundations, namely, a

Formal one (which includes aspects such as the separation of

Powers, checks and balances on the government, and the

Principle of legality; in other words, the institutional power

Map of the country) and a material or substantive one

(which refers to a state bound by a system of fundamental

Values such as justice and equality). Karpen (1988: 173)

Describes the formal and substantive components of a

Constitutional state as—

The value-oriented, concerned with intensely human and humane aspirations

Of personality, conscience and freedom; the structure-oriented, concerned

With vastly more mundane and mechanical matters like territorial boundaries,

Local government, institutional arrangements.

9.2.1 A constitution as a formal power map

Any constitution of a country has a formal power map. It

Deals with the institutional and organisational structures and

Procedures of the state: the type of state and government

(eg unitary or federal state, democracy or one-party state,

And so on) in the country; the powers and functions of the

Various persons and institutions; the different branches and

Tiers of government (separation of powers); checks and

Balances on the government (if any); the electoral system;

Symbols of the country (flags and national anthems);

Elections and appointments; financial arrangements; the

Judicial system; security forces, etc. These formal and

Institutional aspects of a constitution are dealt with in

Subjects such as constitutional law, administrative law and

Local government law. The South African constitutions prior

To 1994 were formal ‘power maps’, because they did not

Provide for a system of constitutional review by which the

Courts could test legislation and government conduct against

A set of constitutional principles. The 1996 Constitution also

Contains an extensive ‘power map’. As a matter of fact, most

Of the Constitution deals with practical institutional

Arrangements of government; for instance, co-operative

Government (Chapter 3), Parliament (Chapter 4), the

President and the executive (Chapter 5), the provinces

(Chapter 6), local government (Chapter 7), the judicial

System (Chapter 8), institutions supporting democracy

(Chapter 9), public administration (Chapter 10), security

Services (Chapter

Page 186

11), traditional leaders (Chapter 12) and finance (Chapter

13). It also includes a number of schedules dealing with

Aspects such as national symbols, elections and (concurrent

And exclusive) areas of national and provincial powers.

9.2.2 Substantive constitutionalism

A supreme constitution contains more than a formal power

Map. It also contains a material or substantive foundation,

Which includes a justiciable bill of rights. The Constitution is

The supreme law, and the state (including the government) is

Bound by a system of fundamental values such as justice and

Equality. The preamble of the interim Constitution expressly

Referred to South Africa as a constitutional state.

In a constitutional state (Rechtsstaat in German, regstaat

In Afrikaans) the Constitution reigns supreme. This means

That the government may only govern in terms of the

Prescribed structural limitations and procedural guarantees

Entrenched in the Constitution. These formal characteristics

Of the constitutional state are supplemented by the fact that

The legal order must be substantively just. In other words,

The state authority is bound by a set of higher, substantive

Legal norms (Ex parte Attorney-General, Namibia: In re The

Constitutional Relationship between the Attorney-General

And the Prosecutor-General 1995 (8) BCLR 1070 (NmS)

1078H-I and 1086H-I).

In S v Makwanyane (above) para 262 Mahomed J

Explained the formal and substantive foundations of a

Constitutional state, and a supreme constitution, in the

Following ringing tones:

All constitutions seek to articulate, with differing degrees of intensity and

Detail, the shared aspirations of a nation; the values which bind its people, and

Which discipline its government and its national institutions; the basic premises

Upon which judicial, legislative and executive power is to be wielded; the

Constitutional limits and the conditions upon which that power is to be

Exercised; the national ethos which defines and regulates that ethos; and the

Moral and ethical direction which that nation has identified for its future. In
Some countries, the Constitution only formalises, in a legal instrument, a

Historical consensus of values and aspirations evolved incrementally from a

Stable and unbroken past to accommodate the needs of the future. The

South African Constitution is different: it retains from the past only what is

Defensible and represents a decisive break from, and a ringing rejection of,

That part of the past which is disgracefully racist,authoritarian, insular, and repressive and a
vigorous identification of and

Commitment to a democratic, universalistic, caring and aspirationally

Egalitarian ethos, expressly articulated in the Constitution.

However, not all public law academics agreed that the new

South Africa was a complete constitutional state, both

Formally and substantively. Strydom (1996: 1) questions the

Reference to post-apartheid South Africa as a constitutional

State. He argues that what is missing is the very nature of a

Constitutional state: the implication of the state being bound

To an inherent substantive juridically qualified limitation. He

Argued that this substantive qualification—

[m]anifests itself in the primary (and limited) function of the constitutional

State . . . namely to realise the equal status of its citizens in both the public

And private law spheres regardless of race, culture, origin, religion, gender or

Political persuasion. This is the essence of the principle of constitutional justice

And requires governance in the interests of all, underpinned by constitutional

Safeguards for human rights and freedoms.

He bases his argument (that the post-apartheid state does

Not fully comply with the substantive notion of a

Constitutional state) on the absence of (at least) three core

Issues: administration of justice, legal certainty and personal

Security of the person.

9.2.3 Constitutional symbolism

The South African Constitution is rich in symbolism, and a

Number of commentators have explained the special status of

The supreme Constitution in a number of symbolic

References.

According to Mureinik (1994: 32) the Constitution forms a

Bridge in a divided society, a bridge from a culture of

Authority (based on sovereignty of Parliament) to a culture of

Justification (based on a supreme constitution). Du Plessis

(2000: 385-394) points out that the Constitution is both a

Monument which celebrates and a memorial which

Commemorates. In S v Acheson (above) 813A-C former ChiefJustice Mahomed referred to a

supreme constitution as a
Mirror:

[T]he Constitution of a nation is not simply a statute which mechanically

Defines the structures of government and the relations between the

Government and the governed. It is a ‘mirror reflecting the national soul’, the

Identification of the ideals and aspirations of a nation; the articulation of the

Page 188

Values bonding its people and disciplining its government. The spirit and tenor

Of the Constitution must therefore preside and permeate the processes of

Judicial interpretation and judicial discretion.

However, the Constitution is more than symbolic window-

Dressing. It is also a transformative document, a commitment

To positive action (eg the inclusion of the socio-economic

Rights in the Bill of Rights). Furthermore, s 7(2) of the

Constitution obliges the state to engage in positive action:

The state must respect, protect, promote and fulfil the rights in the Bill of

Rights.

In other words, the Constitution is both a shield against

Abuse (the classic first-generation ‘negative’ rights), and a

Positive instrument to transform society in view of the

Fundamental rights and values. Furthermore, a supreme

Constitution has the following characteristics: it is open-

Ended, value-laden and has a dimension of futurity. In Nortje

V Attorney General of the Cape 1995 (2) SA 460 © the

Supreme Constitution was described as—

Not a finely tuned statute designed ad hoc to deal with one particular subject,

Or to amend or repeal another specifically named statute, or a specifically

Identified rule of the common-law. It is sui generis. It provides, in the main, a

Set of societal values to which other statutes and rules of the common-law

Must conform, and with which government and its agencies must comply, in

Carrying out their functions. It is short on specifics and long on generalisation.

9.3 HOW TO INTERPRET THE CONSTITUTION

This section forms the heart of this chapter and needs to be studied carefully.

9.3.1 Constitutional guidelines

Botha discusses two sets of guidelines for the interpretation of the Constitution.

The first is what the Constitution itself says in section 39(1) about the way in which

The Constitution should be interpreted; the second is what judges have said about

The way in which the Constitution should be interpreted.

(i) Section 39(1) read with the preamble and section 1 of the Constitution

You must know the wording and meaning of section 39(1) in detail. Note that the

Values mentioned in section 39 (1) (a) can be found in the Preamble to the

Constitution and in section 1 of the Constitution. This means, in effect, that the
Bill of Rights should be interpreted as if its purpose is to give more detailed

Content or effect to the Preamble and foundational provisions of section 1. In fact,

It has been suggested that these provisions form the core of the Constitution and

Can therefore never be amended. The Bill of Rights, on the other hand, can be

Amended with the support of a special majority.

(ii) Principles formulated by the courts

Botha mentions and discusses a number of principles which have been laid down

By the courts over the past decade. Summarise each of these principles and compile

A list with the name of the case in which each principle was first laid down in

Brackets (e. g. the Constitution must be interpreted generously and purposefully

(Shabalala); the Constitution must be interpreted liberally and flexibly; the values

Underlying the constitutional order must be considered in the interpretive process

(Acheson), and so forth).

A comprehensive methodology
The many principles set out in sections 9.3.1 can be reduced to a smaller number

Of methods or approaches (but not, please note, to one single and unquestionable

Approach). These approaches are listed and discussed in paragraph 9.3.2. This

Comprehensive methodology is set out in the quotation from S v Makwanyane. The

Various considerations which are mentioned there, and which must be judiciously

Weighed up against each other, are grouped into five different methodologies by
Botha (in this, he says, he has followed Du Plessis and Corder). You need to be

Able to list and discuss each of these techniques or methods of constitutional

Interpretation as explained by Botha.

Make use of the following activities in order to deepen your understanding:

9.3 How to interpret the constitution

In Nortje v Attorney-General of the Cape (above) 472F-G,

Marais J questioned the categorisation of theories and canons

Of constitutional interpretation:
[T]he approaches adopted by other Courts and constitutional lawyers to the
Interpretation, limitation and application of constitutionally entrenched rights

Are undoubtedly a valuable aid to understanding what is entailed in those

Processes. Logically structured and systematic approaches have an inherent

Appeal for lawyers. However, they remain what they are, not holy writ, but

Simply methodological approaches which are not necessarily the only

Legitimate approaches to the task . . . I regard it as unwise to settle too

Dogmatically now upon one methodology at this very early and embryonic

Stage

Page 189

Of applying our newly devised Constitution to concrete situations. Indeed, it is

Questionable whether it would be wise to do so at any stage.

9.3.1 Constitutional guidelines

What does the Constitution say about its interpretation?

Section 39(1) of the Constitution provides the following with

Regard to interpretation of the Bill of Rights:

When interpreting the Bill of Rights, a court, tribunal or forum—

Must promote the values which underlie an open and democratic

Society based on human dignity, equality and freedom;

Must consider international law; and

May consider foreign law.

The first part of the provision is peremptory: when

Interpreting the Bill of Rights, a court, tribunal or forum

Must make value judgements (ie promote the values which

Underlie an open and democratic society based on human

Dignity, equality and freedom) and must have regard to

International law (international human rights law in

Particular). This is a set of universal rules and norms dealing

With the protection of fundamental human rights and consists

Of a number of international documents and rules of

Customary international law.

Furthermore, a court, tribunal or forum may also refer to

Foreign law when interpreting the Bill of Rights. The rules of

Foreign law applicable here are those legal principles (in

Particular case law) which do not conflict with the South

African legal order (s 35(1) of the interim Constitution

Referred to ‘comparable foreign case law’); in other words,

Those legal principles applied in a democratic legal order

Based on constitutionalism.

The interpretation clause of the Bill of Rights must be read

With the supremacy clause, as well as with s 1. Section 1 is

Arguably one of the most important provisions in the

Supreme Constitution:

The Republic of South Africa is one, sovereign, democratic state founded on

The following values:

Human dignity, the achievement of equality and the advancement

Of human rights and freedoms.

Non-racialism and non-sexism.

Universal adult suffrage, a national common voters roll,

Page 190

Regular elections and a multi-party system of democratic government,

To ensure accountability, responsiveness and openness.

An in-depth discussion of all the rules and principles of

Constitutional interpretation is a subject on its own. The

Following are some of the general principles formulated by

Southern African courts:

A supreme constitution must be given a generous and

Purposive interpretation (Shabalala v The Attorney-General

Of Transvaal 1996 (1) SA 725 (CC) 740 para 26). In

Nyamakazi v President of Bophuthatswana (above) 567H it

Was held that a purposive interpretation of the Constitution

Is necessary, since it enables the court to take into account

More than legal rules:

These are the objectives of the rights contained therein, the

Circumstances operating at the time when the interpretation has to be

Determined, the future implications of the construction, the impact of

The said construction on future generations, the taking into account of

New developments and changes in society.

Case law also refers to a liberal interpretation of the

Constitution. A liberal interpretation does not have a political

Connotation, but refers to flexibility and generosity. The

Constitution must be liberally construed, taking into account

Its terms and spirit, the intention of the framers and the

Objectives of and reasons for the legislation. In the process,

The ordinary rules of statutory interpretation must give way

To this more adaptable and flexible method.

During the interpretation of the Constitution, its spirit

And tenor must be adhered to (S v Acheson (above)). This

Means that the values and moral standards underpinning the

Constitution must be taken into account throughout the

Entire interpretation process.

A provision in the Constitution cannot be interpreted in

Isolation, but must be read in the context as a whole. The

Context includes the historical factors that led to the adoption

Of the Constitution in general, and the fundamental rights in

Particular (S v Makwanyane (above)).

Respect must be paid to the language employed in the

Constitution. Although the text is balanced and qualified by

Various contextual factors, the context is anchored to the

Particular constitutional text. In other words, historical

Context and comparative interpretation can never reflect a

Page 191

Purpose that is not supported by the constitutional text

As a legal instrument. However, this does not imply a

Mechanical adherence to the strict austerity of literal

Legalism (Shabalala v The Attorney-General of

Transvaal (above) 740 para 27). In Nyamakazi v

President of Bophuthatswana (above) 566G this

Method was referred to as an open-ended process of

Elucidation and commentary which explores, reads into,

Derives and attaches significance to every word, section

Or clause in relation to the whole context.

In S v A Juvenile 1990 (4) SA 151 (ZSC) 176B, the

Court stressed the fact that the Constitution, as the supreme

Law of the land, has bestowed on the court the sacred trust of

Protecting human rights.

•

•
The Constitution was drafted with a view to the future,

Providing a continuing framework for the legitimate exercise

Of government power and the protection of individual rights

And freedoms (Khala v The Minister of Safety and Security

(above) 122D–E). The Constitution has to be interpreted in

The context and setting existing at the time when the case is

Heard, and not when it was passed, otherwise the growth of

Society will not be taken into account. The Constitution must

Be interpreted so that it gives clear expression to the values

The Constitution intends to nurture for the future (Qozoleni v

Minister of Law and Order (above)).

Some die-hard supporters of the orthodox text-based

Approach who do not understand a system of constitutional

Supremacy refer to constitutional interpretation as a free-

Floating exercise. This is simply not correct. Ultimately,

Constitutional interpretation is a question of law: if the

Particular legislation is consistent with the Constitution, it is

Valid and in force; if not, the court which exercises a judicial

Check in terms of the Constitution will declare it

Unconstitutional and strike it down. Constitutional

Interpretation is an exercise in the balancing of various

Societal interests and values.

These methods and principles of constitutional

Interpretation do not constitute a closed set of hard and fast

Rules. Constitutional interpretation is an inherently flexible

Process. It is not a dogmatic and mechanical application of

Predefined approaches and rules. Allowance must be made

For changing circumstances (Nortje v Attorney-General of the

Cape (above) 472F–473C).

Page 192

The principles of international human rights law and

Foreign law must be applied with due regard for the South

African context (S v Zuma 1995 (2) SA 642 (CC) 651H–I). In

Other words, constitutional interpretation must start and end

With the South African Constitution (S v Makwanyane

(above) 406E–407C, Du Plessis v De Klerk (above) para

123).

All judges and judicial officers are obliged to interpret

And apply legislation so as to give effect to the fundamental

Values and rights in the supreme Constitution. This role is

Not a mechanical reiteration of the mythical intent of the

Lawgiver, but is rather an ongoing, value-based struggle

Between competing rights and values. This struggle

(engagement) with the constitutional text, context, law and

Society in transformation is eloquently described (with

Reference to the limitation of rights) by Sachs J in Prince v

Cape Law Society 2002 (2) SA 794 (CC) para 155:

What it requires is the maximum harmonisation of all the competing

Considerations, on a principled yet nuanced and flexible case-by-case

Basis, located in South African reality yet guided by international

Experience, articulated with appropriate candour and accomplished

Without losing sight of the ultimate values highlighted by our

Constitution. In achieving this balance, this Court may frequently find

Itself faced with complex problems as to what properly belongs to the

Discretionary sphere which the Constitution allocates to the Legislature

And the Executive, and what falls squarely to be determined by the

Judiciary.

9.3.2 A comprehensive methodology

But how do we concretise these principles and guidelines?

How do we make it practical in the real world of racism and

Politics and poverty and crime and aspirations and so on? As

Was pointed out earlier (Chapter 5), Du Plessis & Corder

(1994: 73-74) discuss five techniques of interpretation.

These complementary techniques apply to constitutional

Interpretation as well.

(a) Grammatical interpretation

This aspect acknowledges the importance of the role 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. This

Includes the rules of syntax, which are the rules dealing with

The order of words in a sentence. However, this does not

Imply a return to

Page 193

Literalism and the orthodox ‘plain meaning rule’. It merely

Accepts the authoritative constitutional text as a very

Important piece in the jigsaw puzzle of constitutional

Interpretation. According to Du Plessis (1996: 223):

The completed [constitutional] text posits, with great authority, a starting

Point for interpretation, and eventually application, but it invites, with equal

Authority, improvisation, thereby recognising its own inconclusiveness.

(b) Systematic (or contextual) interpretation

This method is concerned with the clarification of the

Meaning of a particular constitutional provision in

Conjunction with the Constitution as a whole. The emphasis

On the ‘wholeness’ is not restricted to the other provisions

And parts of the Constitution, but also takes into account all

Contextual considerations such as the social and political

Environments in which the Constitution operates. In Ferreira

V Levin 1996 (2) SA 984 (CC), the Constitutional Court used

The structure of the interim Constitution, as well as the

Formulation of other fundamental rights, to interpret the

Right to freedom of the person.

© Teleological (value-based) interpretation

This entails a value-coherent construction—the aim and

Purpose of the provision must be ascertained against the

Fundamental constitutional values. The fundamental values

In the Constitution form the foundation of a normative

Constitutional jurisprudence during which legislation and

Actions are evaluated against (and filtered through) those

Constitutional values. In Coetzee v Government of the

Republic of South Africa; Matiso v Commanding Officer, Port

Elizabeth Prison (above) para 46 Sachs J explained the

Teleological dimension of constitutional interpretation:

The values that must suffuse the whole process are derived from the concept

Of an open and democratic society based on freedom and equality, several

Times referred to in the Constitution. The notion of an open and democratic

Society is thus not merely aspirational or decorative, it is normative, furnishing

The matrix of ideals within which we work, the source from which we derive

The principles and rules we apply, and the final measure we use for testing the
Legitimacy of impugned norms and conduct . . . [W]e should not engage in

Purely formal or academic analysis, nor simply restrict ourselves to ad hoc

Technicism, but rather focus on what has been called the synergetic relation

Between the values

Page 194

Underlying the guarantees of fundamental rights and the circumstances of the

Particular case.

(c) Historical interpretation

The term travaux préparatoires refers to the discussions

During the drafting of an international treaty, but it is also

Increasingly used with regard to the deliberations of the

Drafters of a supreme constitution. A supreme constitution,

Which includes a bill of fundamental rights, has been

Described as a ‘living tree’. It is a dynamic document, which

Must be interpreted in the light of ever-changing

Circumstances, values and perceptions. However, if the

Deliberations of the constitutional drafters (the so-called

‘original intent’) become the deciding factor during the

Interpretation of such a constitution, there will be no

Development and adaptability. The result will be that future

Generations will be bound by a single stroke of constitution-

Making, with no growth, dialogue, discourse, changes or

Flexibility possible.

This means that the travaux préparatoires of the

Constitution may be consulted as an external aid, but they

Cannot be the deciding factor. In S v Makwanyane (above)

Para 17 the court explained that the Multi-Party NegotiatingProcess was advised by technical
committees, and the reports

Of those committees on the drafts are the equivalent of the

Travaux préparatoires relied upon by international tribunals.

Such background material can provide a context for the

Interpretation of the Constitution and, where it serves that

Purpose, it may be used.

€ Comparative interpretation

This refers to the process (such as that prescribed by s 39(1)

Of the Constitution) during which the court examines

International law and the constitutional decisions of foreign

Courts. This must be done with due regard to the unique

Domestic context of the Constitution under consideration, as

Was pointed out by Chaskalson P in S v Makwanyane (above)

Para 39:

In dealing with comparative law we must bear in mind that we are required to

Construe the South African Constitution, and not an international instrument

Or the constitution of some foreign country, and that this has to be done with

Due regard to our legal system, our history and circumstances, and the

Structure and language of our own Constitution. We can derive assistance

From public international law and foreign case law, but we are in no way

Bound to follow it.

Page 195

These five aspects of constitutional interpretation are not

Mere theoretical reflections, but all of them can be identified

In judgments of the Constitutional Court, as illustrated by

Mahomed J para 266 of S v Makwanyane (above) [emphasis

Added]:
What . . . is required to do in order to resolve an issue is to examine the

Relevant provisions of the Constitution, their text and their context; the

Interplay between the different provisions; legal precedent relevant to the

Resolution of the problem both in South Africa and abroad; the domestic

Common-law and public international law impacting on its possible solution;

Factual and historical considerations bearing on the problem; the significance

And meaning of the language used in the relevant provisions; the content and

Sweep of the ethos expressed in the structure of the Constitution; the

Balance to be struck between different and sometimes potentially conflicting

Considerations reflected in its text; and by a judicious interpretation andassessment of all these
factors to determine what the Constitution permits

And what it prohibits.

ACTIVITY 9.1

(Categorical and flexible constitutional interpretation)

Apply the distinction between “categorical” and “flexible” reasoning or interpretation to the

Case of the death penalty. Formulate a categorical constitutional argument against the death

Penalty. Now formulate a flexible, case-by-case constitutional argument against the death

Sentence. Which did you find more challenging? Why is it said that the first type of argument

Is incompatible with the spirit of democracy? Do you agree with this statement?

FEEDBACK

A formal or categorical argument against the death sentence might take the following form:

In terms of section 11 of the Constitution, everyone has the right to life. The death sentence

Violates that right, because it terminates life. This violation cannot be justified in terms of

Section 36, on the basis of the high crime rate (for example), because the death sentence

Does not limit the right to life, but completely terminates or destroys it. It follows logically that

The death sentence is unconstitutional.

A flexible case-by-case argument might take the following form: the death sentence has a

Long history in South Africa. It was misused by the apartheid government to kill many
Political opponents of apartheid. Nelson Mandela himself faced the death sentence but was,

Fortunately, sentenced to life imprisonment. Other leaders of the struggle, however, were not

Spared. What would the course of history have been if Mandela had also been executed? It

Is understandable in the light of this abuse of the death sentence that the transformation

From apartheid to democracy should have been accompanied by the highly symbolic

Abolition of the death sentence. It was the first case before the Constitutional Court and the

First opportunity to show the nation that the old political order and its abuse of the law has

Been replaced by a new democratic order. The fact that leading democratic states such as

The United States of America still regard the death sentence as a constitutionally valid form

Of punishment is, in our context, not of decisive importance. In the United States the

Imposition of the death sentence has never been employed as a strategy to combat what in

Effect amounted to, a civil war against the government. South Africa’s political history and

The stigma attached to the death sentence also mean that the issue of the death sentence
Cannot, at this time, be approached purely as an issue of crime and punishment. It is

Possible that the position will change as the new democratic order becomes symbolically

Entrenched in the minds and realities of daily life in South Africa. Should the rate of violent

Crime increase at the same time, we might reach a point where the symbolic message

Encapsulated in the abolition of the death sentence will become less important and the role

Of the death sentence in the fight against crime will have to be reconsidered. However, today,

We have not reached that critical point and the death sentence should be declared an

Unconstitutional violation of the right to life.

One could say that the second type of argument reflects the spirit of democracy because

(unlike the first type of argument) it does not make any absolute or categorical statements

That cannot be challenged or reviewed. Note that “democracy”, in this context, does not

Simply mean majority rule. Democracy means that all issues in the State are settled by

Argument and debate (as opposed to power and force). The democratic spirit is a

Celebration of the questionability of all established truths. The first line of argument is
Undemocratic in this sense because it tries to present the case against the death sentence

In terms of the unquestionable rules of formal logic.

9.4 AVOIDING UNCONSTITUTIONAL LEGISLATION

Competent courts may attempt to keep legislation constitutional by applying a

Number of corrective techniques. This is important, as declaring a piece of

Legislation may result in a vacuum, as that legislation will no longer be applied.

There are, however limits to corrective interpretation.

The principles for corrective interpretation as laid down by Constitutional Court in

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000(2) SA 1

(CC) are discussed in section 9.4.1. Make sure you know and understand these

Principles.

Certain types of corrective interpretation are discussed in sections 9.4.2– 9.4.5.

These forms of corrective interpretation are important, and you must be able to

Identify, discuss and apply them.

9.4 Avoiding unconstitutional

Legislation

As was pointed out in Chapter 4, when a court declares

Legislation unconstitutional and invalidates it, the legislation

Can no longer be applied. This could create a vacuum in the

Legal order. Competent courts involved in constitutional

Review (the testing of legislation against the Constitution)

May try, if reasonably possible, to modify or adapt the

Legislation to keep it constitutional and alive. The court may

Then employ a number of corrective techniques (so-called

‘reading-down’, ‘reading-up’, ‘reading-in’ and severance) in an

Attempt to keep the legislation in question constitutional and

Valid.

9.4.1 The limits of corrective interpretation

During constitutional review

In National Coalition for Gay and Lesbian Equality v Minister

Of Home Affairs 2000 (2) SA 1 (CC) the Constitutional Court

Laid down a number of principles to be considered and

Followed before ‘reading-in’ is applied. However, these factors

Will also apply to severance:

The results of reading-in/severance/reading-up must be

Consistent with the Constitution and its values.

The result achieved should interfere with the existing

Law as little as possible.

Page 196

The courts must be able to define with sufficient

Precision how the legislative meaning ought to be modified to

Comply with the Constitution.

The court should endeavour to be as faithful as possible

To the legislative scheme (ie aim/purpose) within the

Constraints of the Constitution.

The remedy of reading-in ought not to be granted

Where this would result in an unsupportable budgetary

Intrusion.

9.4.2 Reading-down

Sections 35(2) and 232(2) of the interim Constitution

Provided that if legislation is on the face of it

Unconstitutional (because it conflicts with the fundamental

Rights and the rest of the Constitution respectively), but is

Reasonably capable of a more restricted interpretation which

Would be constitutional and valid, such restricted

Interpretation should be followed (ie ‘reading-down’). These

Provisions have not been repeated in the Constitution of

1996, 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 (in

Germany it is called Verfassungskonforme Auslegung). This

Principle is similar to the common law presumption that the

Legislation does not contain futile or meaningless provisions

(see Chapter 6 above).

9.4.3 Reading-up

Reading-up takes place when there is more than one possible

Reading of the legislative text, and a more extensive reading

Is adopted in order to keep the legislation in question

Constitutional.

Case law example:

In Daniels v Campbell 2004 (5) SA 331 (CC) the

Court held that a person who is party to a

Monogamous Muslim marriage is not included under

The terms ‘spouse’ and ‘spouses’ in the Intestate

Succession Act 81 of 1987 and the Maintenance of

Surviving Spouses Act 27 of 1990. In order to avoid

Unconstitutionality of the legislation, the court

Interpreted the words in a broad and inclusive way

To include persons married according to Muslim

Rites.

Page 197

9.4.4 Reading-in
Reading-in is a more drastic remedy used by the courts in

Order to change legislation in order to keep it constitutional.

In exceptional circumstances the court will ‘read’ something

Into the meaning of a provision in order to rescue a

Provision, or a part of it. Reading-in should be applied with

Caution, since the court will change the meaning of the

Legislation, and after all, the legislative function is entrusted

To bodies and persons authorised to enact legislation.

Case law example:

In Gory v Kolver (Starke and Others Intervening)

2007 (4) SA 97 (CC) the court found that the

Provisions of s 1(1) of the Intestate Succession Act

81 of 1987 were unconstitutional, and it was

Reasonably possible to interpret the provision as if

The words ‘or partner in a permanent same-sex life

Partnership in which the partners have undertaken

Reciprocal duties of support’ appeared after the

Word ‘spouse’ in the section.

9.4.5 Severance

In practical terms ‘severance’ is the opposite of ‘reading-in’.

Here the court will try to rescue a provision from the fate of

Unconstitutionality by ‘cutting out’ a part of the provision

From the rest of the text to keep the remainder constitutional

And valid. Before severance can be applied, the two

Requirements must be met: First, it must be possible to

Separate (sever or cut out) the unconstitutional (bad) part of

The provision from the rest (the good). Secondly, what

Remains of the provision must still be able to give effect to

The purpose of the legislation (Coetzee v Government of the

Republic of South Africa (above)).

9.5 WHOSE CONSTITUTION IS IT ANYWAY?

In this section Botha raises important questions about judicial activism and

Restraint, especially in the context of socioeconomic rights. In the process he

Addresses many of the challenges and unanswered questions about constit-

Utionalism and constitutional interpretation in post-apartheid South Africa. The

Issues that are discussed in paragraph 9.5 fall outside the scope of this introductory

Course and need not be studied.

9.5 Contemporary challenges, or,

Whose Constitution is it anyway?

So: after nearly two decades of rainbow democracy and

Constitutionalism, the question of constitutional

Interpretation and application has been sorted out, right?

The Constitution and the Bill of Rights require a purposive

Interpretation, with due regard to the values and aspirations

Expressed in the constitutional text, right? Now that the

Philosophical issues

Page 198

Have been addressed, we can concentrate on real issues,

Right?

It is not that simple and final. Constitutional interpretation

Is a dynamic process which can never be finished, since

Circumstances and perceptions and values will change. There

Can never be one final interpretation which is cast in stone.

No understanding of the Constitution is holy writ, and there

Are many unanswered questions and unsolved problems that

Need to be addressed. After all, the Constitution is supposed

To be a living document, and unless we understand and

Accept the indeterminacy and evolving nature of

Constitutional interpretation and constitutional jurisprudence,

There is a danger of falling back into other new rigid

Orthodoxies: not sovereignty of Parliament (‘Parliament has

Spoken’), but maybe this time series of executive-minded

Pronouncements by the Constitutional Court (the Oracle of

Braamfontein), or government’s oligarchical obstinacy in

Pretoria. In S v Mhlungu 1995 (3) SA 867 (CC) para 129,

Sachs J explained this ever-changing process of

Interpretation as follows:

I regard the question of interpretation to be one to which there can never be

An absolute and definitive answer and that, in particular . . . how to balance

Out competing provisions, will always take the form of a principled judicial

Dialogue, in the first place between members of this Court, then between our

Court and other Courts, the legal profession, law schools, parliament, and

Indirectly, with the public at large.

TEST YOURSELF

(1) Explain the provisions of section 39(1) and how these provisions are related

To section 39(2) of the Constitution.

(2) List ten guidelines for constitutional interpretation.

(3) Why can it be said that the Constitutional Court laid down a “comprehensive

And inclusive” method of constitutional interpretation in S v Makwanyane?

Explain by relating each of the methods of constitutional interpretation to

The judgment in question.

(4) DEFINE the terms “reading-down”, “reading-in” and “severance”.

Conclusion
We have now come to the end of the textbook and our course. We trust that you

Are finding the course challenging and feel rewarded as you master the material. It

Is unlikely that you will have mastered all the important aspects of the course on

The first reading of the prescribed study material. We therefore urge you to return

To the beginning of the course and work through the prescribed material again. You

Will be surprised how much your grasp of the overall structure and content of the

Course will help you to understand issues which might have been obscure before.

As you go through the course again, you must also begin to pay attention to the

STUDY UNIT 9

Explain what the Constitution itself says about its own interpretation

Section 39(2) of the Constitution prescribes the filtering of legislation through the fundamental

Rights during the ordinary (run of the mill or conventional) interpretation process.

Constitutional interpretation refers to the authoritative interpretation of the supreme

Constitution by the judiciary during judicial review of the constitutionality of legislation and

Government action in terms of section 172 of the Constitution.

Because both forms of legislative interpretation are interrelated, it is preferable that both are

Members of the same broad interpretive family.

Section 39(2) ensures that, generally speaking, ordinary statutory interpretation should also

Be based on a text-in-context method similar to that used in constitutional interpretation.

Discuss what the courts have said about the interpretation of the Constitution

This difference between constitutional and ordinary interpretation was explained by Froneman

J in Matiso v Commanding Officer, Port Elizabeth Prison 587 G – H:

The interpretation of the Constitution will be directed at ascertaining the foundational values

Inherent in the Constitution, whilst the interpretation of the particular legislation will be directed

At ascertaining whether that legislation is capable of an interpretation which conforms with the

Fundamental values or principles of the Constitution.

Du Plessis & Corder (1994; 88) point out that the differences between constitutional and
Ordinary interpretation must not be over-emphases. Both deal with the interpretation of

Legislative instruments.

De Ville (2000: 60) puts it as follows:

The constitutional theory which inspires the interpretation of the Constitution should ….. also

Inform statutory interpretation. The principles for the interpretation of statutes are to be

Derived from the Constitution.

Explain the close relationship between constitutional and statutory interpretation

The status of the supreme Constitution in the legal order is the main reason for the difference

Between constitutional interpretation and ‘ordinary’ interpretation. The Constitution is the lex

Fundamentalis (fundamental law) of the South African legal order. As such, it embodies the
Values of society, as well as the aspirations, dreams and fears of the nation, and should in

Fact be the most important national symbol.

List and discuss the most important guidelines on constitutional interpretation

Section 39(1) of the Constitution provides the following with regard to the interpretation of the
Bill of Rights:

When interpreting the Bill of Rights, a court, tribunal or forum-

a) Must promote the values which underlie an open and democratic society based on human

Dignity, equality and freedom;

b) Must consider international law; and

c) May consider foreign law.

The interpretation clause of the Bill of Rights must be read with the supremacy clause, as well

As with section 1. Section 1 is arguably one of the most important provisions in the supreme

Constitution:

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 of human rights and non-sexism.

c) Universal adult suffrage, a national common voters roll, regular elections and a multi-
party

System of democratic government, to ensure accountability, responsiveness and

Openness.

The following are some of the general principles formulated by Southern African courts:

 A supreme constitution must be given a generous and purposive interpretation (Shabalala

V The Attorney-General of Transvaal 1996 (1) SA 725 (CC);

 Case law also refers to a liberal interpretation of the Constitution. A liberal interpretation

Does not have a political connotation, but refers to flexibility and generosity;

 During the interpretation of the Constitution, its spirit and tenor must be adhered to (S v

Acheson);

 A provision in the Constitution cannot be interpreted in isolation, but must be read in the

Context as a whole (S va Makwanyane);

 Respect must be paid to the language employed in the Constitution (Shabalala v The

Attorney-General of Transvaal);

 In S v Juvenile 1990 (4) SA 151 (ZSC) 176B, the court stressed the fact that the

Constitution, as the supreme law of the land, has bestowed on the court the sacred trust

Of protecting human rights;

 The Constitution was drafted with a view to the future, providing a continuing framework

For the legitimate exercise of government power and the protection of individual rights and

Freedoms (Khala v The Minister of Safety and Security);

 Constitutional interpretation is a question of law: if the particular legislation is consistent

With the Constitution, it is valid and in force; if not, the court which exercises a judicial

Check in terms of the Constitution will declare it unconstitutional and strike it down.
Constitutional interpretation is an exercise in the balancing of various social interests and

Values;

 Constitutional interpretation if an inherently flexible process (Nortje v Attorney-General of

The Cape);

 The principles of international human rights law and foreign law must be applied with due

Regard for the South African context (S v Zuma 1995 (2) SA 642 (CC);

 All judges and judicial officers are obliged to interpret and apply legislation so as to give

Effect to the fundamental values and rights in the supreme Constitution (Prince v Cape

Law Society 2002 (2) SA 794 (CC).

List and discuss the most important methods of constitutional interpretation

1. Grammatical interpretation

This aspect acknowledges the importance of the role 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. This includes the rules of syntax,

Which are the rules dealing with the order of words in a sentence.

2. Systematic (contextual) interpretation

This method is concerned with the clarification of the meaning of a particular constitutional

Provision in conjunction with the Constitution as a whole. The emphasis on the ‘wholeness’

Is not restricted to the other provisions and parts of the Constitution, but also takes into

Account all contextual considerations such as the social and political environments in

Which the Constitution operates (Ferreira v Levin 1996 (2) SA 984 (CC).

3. Teleological (value-based) interpretation

This entails a value-coherent construction – the aim and purpose of the provision must be

Ascertained against the fundamental constitutional values. The fundamental values in the

Constitution form the foundation of a normative constitutional jurisprudence during which

Legislation and actions are evaluated against (and filtered through) those constitutional

Values (Coetzee v Government of the Republic of South Africa; Matiso v Commanding

Officer, Port Elizabeth Prison).

4. Historical interpretation

The term travaux preparatoires refers to the discussions during the drafting of an
International treaty, but it is also increasingly used with regard to the deliberations of the

Drafters of a supreme constitution. The result will be that future generations will be bound

By a single stroke of constitution-making, with no growth, dialogue, discourse, changes or

Flexibility possible.

This means that the travaux preparatoires of the Constitution may be consulted as an

External aid, but they cannot be the deciding factor. (S v Makwanyane)

5. Comparative interpretation

This refers to the process (such as that prescribed by section 39(1) of the Constitution)

During which the court examines international law and the constitution decisions of foreign

Courts. This must be done with due regard to the unique domestic context of the

Constitution under consideration, as was pointed out by Chaskalson P in S v

Makwanyane.

Explain the principles relevant to corrective interpretation

When a court declares legislation unconstitutional and invalidates it, the legislation can no

Longer be applied. This could create a vacuum in the legal order. Competent courts involved

In the constitutional review (the testing of legislation against the Constitution) may try, if

Reasonably possible, to modify or adapt the legislation to keep it constitutional and alive. The

Court may then employ a number of corrective techniques such as reading-down, reading-up,

Reading-in and severance in an attempt to keep the legislation in question constitutional and

Valid.

List and discuss the different forms of corrective interpretation

1. Reading-down

Sections 35(2) and 232(2) of the interim Constitution provided that if legislation is on the

Face of it unconstitutional (because it conflicts with the fundamental rights and the rest of

The Constitution respectively) but is reasonable capable of a more restricted interpretation

Which would be constitutional and valid, such restricted interpretation should be followed

(i.e. reading-down). This principle is similar to the common law presumption that the
Legislation does not contain futile or meaningless provisions.

2. Reading-up

Reading-up takes place when there is more than one possible reading of the legislative

Text, and a more extensive reading is adopted in order to keep the legislation in question

Constitutional (Daniels v Campbell 2004 (5) SA 331 (CC)).

3. Reading-in

Reading-in is a more drastic remedy used by the courts in order to change legislation in

Order to keep it constitutional. Reading-in should be applied with caution, since the court

Will change the meaning of the legislation, and after all, the legislative function is entrusted

To bodies and persons authorize to enact legislation. (Gory v Kolver (Starke and Others

Intervening) 2007 (4) SA 97 (CC))

4. Severance

Here the court will try to rescue a provision from the fate of unconstitutionality by ‘cutting
Out’ a part of the provision from the rest of the text to keep the remainder constitutional

And valid. Before severance can be applied, the 2 requirements must be met:

a) It must be possible to separate (sever or cut out) the unconstitutional (bad) part of the

Provision from the rest (the good).

b) What remains of the provision must still be able to give effect to the purpose of the

Legislation (Coetzee v Government of the Republic of South Africa).

Apply the distinction between “categorical” and “flexible” reasoning or interpretation to the

Case of the death penalty. Formulate a categorical constitutional argument against the death

Penalty. Now formulate a flexible, case-by-case constitutional argument against the death

Penalty sentence. Which did you find more challenging? Why is it said that the first type of

Argument is incompatible with the spirit of democracy? Do you agree with this statement?

A formal or categorical argument against the death sentence might take the following form:

In terms of section 11 of the Constitution, everyone has the right to life. The death sentence

Violates that right, because it terminates life. This violation cannot be justified in terms of
Section 36, on the basis of the high crime rate (for example) because the death sentence does

Not limit the right to life, but completely terminates or destroys it. It follows logically that the

Death sentence is unconstitutional.

A flexible case-by-case argument might take the following form: the death sentence has a

Long history in South Africa. It was misused by the apartheid government to kill many political

Opponents of apartheid. Nelson Mandela himself faced the death sentence but was,

Fortunately, sentenced to life imprisonment. Others leaders of the struggle, however, were not

Spared. What would the course of history have been if Mandela had also been executed? It

Is understandable in the light of this abuse of the death sentence that the transformation from

Apartheid to democracy should have been accompanied by the highly symbolic abolition of

The death sentence. It was the first case before the Constitutional Court and the first

Opportunity to show the nation that the old political order and its abuse of the law has been

Replaced by a new democratic order. The fact that leading democratic states such as the
United States of America still regard the death sentence as a constitutionally valid form of

Punishment is, in our context, nor of decisive importance. In the United States the imposition

Of the death sentence has never been employed as a strategy to combat what in effect

Amounted to, a civil war against the government. South Africa’s political history and the stigma

Attached to the death sentence also mean that the issue of the death sentence cannot, at this

Time, be approached purely as an issue of crime and punishment. It is possible that the

Position will change as the new democratic order becomes symbolically entrenched in the

Minds and realities of daily life in South Africa. Should the rate of violent crime increase at

The same time, we might reach a point where the symbolic message encapsulated in the

Abolition of the death sentence will become less important and the role of the death sentence

In the right against crime will have to be reconsidered. However, today we have not reached

That critical point and the death sentence should be declared an unconstitutional violation of

The right to life.

One could say that the second type of argument reflects the spirit of democracy because
(unlike the first type of argument) it does not make any absolute or categorical statements that

Cannot be challenged or reviewed. Note that “democracy” in this context, does not simply

Mean majority rule. Democracy means that all issues in the State are settled by argument and

Debate (as opposed to power and force). The democratic spirit is a celebration of the

Questionability of all established truths. The first line of argument is undemocratic in this sense

Because it tries to present the case against the death sentence in terms f the unquestionable

Rules of formal logic.

Explain the provisions of section 39(1) and how these provisions are related to section 39(2)

Of the Constitution

List ten guidelines for constitutional interpretation

The following are some of the general principles formulated by Southern African courts:
 A supreme constitution must be given a generous and purposive interpretation (Shabalala

V The Attorney-General of Transvaal 1996 (1) SA 725 (CC);

 Case law also refers to a liberal interpretation of the Constitution. A liberal interpretation
Does not have a political connotation, but refers to flexibility and generosity;

 During the interpretation of the Constitution, its spirit and tenor must be adhered to (S v

Acheson);

 A provision in the Constitution cannot be interpreted in isolation, but must be read in the

Context as a whole (S va Makwanyane);

 Respect must be paid to the language employed in the Constitution (Shabalala v The

Attorney-General of Transvaal);

 In S v Juvenile 1990 (4) SA 151 (ZSC) 176B, the court stressed the fact that the

Constitution, as the supreme law of the land, has bestowed on the court the sacred trust

Of protecting human rights;

 The Constitution was drafted with a view to the future, providing a continuing framework

For the legitimate exercise of government power and the protection of individual rights and

Freedoms (Khala v The Minister of Safety and Security);

 Constitutional interpretation is a question of law: if the particular legislation is consistent

With the Constitution, it is valid and in force; if not, the court which exercises a judicial

Check in terms of the Constitution will declare it unconstitutional and strike it down.

Constitutional interpretation is an exercise in the balancing of various social interests and

Values;

 Constitutional interpretation if an inherently flexible process (Nortje v Attorney-General of

The Cape);

 The principles of international human rights law and foreign law must be applied with due

Regard for the South African context (S v Zuma 1995 (2) SA 642 (CC);

 All judges and judicial officers are obliged to interpret and apply legislation so as to give

Effect to the fundamental values and rights in the supreme Constitution (Prince v Cape

Law Society 2002 (2) SA 794 (CC).

Why can it be said that the Constitutional Court laid down a “comprehensive and inclusive”

Method of constitutional interpretation in S v Makwanyane? Explain by relating each of the

Methods of constitutional interpretation to the judgment in question.

Define the terms “reading-down”, “reading-in” and “severance”.

Reading-down

Sections 35(2) and 232(2) of the interim Constitution provided that if legislation is on the face

Of it unconstitutional (because it conflicts with the fundamental rights and the rest of the

Constitution respectively) but is reasonable capable of a more restricted interpretation which

Would be constitutional and valid, such restricted interpretation should be followed (i.e.

Reading-down). This principle is similar to the common law presumption that the legislation

Does not contain futile or meaningless provisions.

Reading-in

Reading-in is a more drastic remedy used by the courts in order to change legislation in order

To keep it constitutional. Reading-in should be applied with caution, since the court will change

The meaning of the legislation, and after all, the legislative function is entrusted to bodies and
persons authorize to enact legislation. (Gory v Kolver (Starke and Others Intervening) 2007
 (5) SA 97 (CC))

Severance

Here the court will try to rescue a provision from the fate of unconstitutionality by ‘cutting out’

A part of the provision from the rest of the text to keep the remainder constitutional and valid.

Before severance can be applied, the 2 requirements must be met:

a) It must be possible to separate (sever or cut out) the unconstitutional (bad) part of the

Provision from the rest (the good).

b) What remains of the provision must still be able to give effect to the purpose of the

Legislation (Coetzee v Government of the Republic of South Africa).

CHAPTER 9 – PEREMPTORY & DIRECTORY PROVISIONS

See example on pg 74 of SG

Legislation which contains the formal / procedural requirements that have to be followed before
a legal
Privilege is obtained, or status achieved, often stipulates what the consequences will be if these

Requirements are ignored

However, legislation sometimes fails to specify what the consequences are where statutory
requirements

Are ignored

Peremptory Directory

A statutory provision that requires exact compliance A statutory provision requiring substantial

Compliance only

Non-compliance with a peremptory provision will

Leave the ensuing act (action or conduct) null & void

Non-compliance (or defective / partial compliance)

With a directory provision will not result in the

Ensuing act being null & void – exact compliance is

Not a prerequisite
Courts generally follow a text-in-context (purposive) approach to the interpretation of
peremptory &

Directory provisions – the language of the provision is read in its context & all intra- and extra-
textual aids

Are used to determine the purpose of the legislation

In the process the courts also draw on interpretative factors such as the principles of justice, fair
play,

Convenience, logic, effectiveness & morality

Commercial Union case:

Insurance company denied that it was liable to pay compensation to an injured road user because
that road

User failed to follow the correct procedure when his claim was instituted – Motor Vehicle
Insurance Act

States that a claim for compensation “shall be sent by registered post / by hand to the registered
company”

And that no claim shall be enforceable by legal proceedings if it commenced within 60 days
from the date

Upon which the claim was sent / delivered to the registered company – in this case the notice
was delivered
In time, but was sent by ordinary post – the insurance company used this technical point to try
escape

Liability – it argued that the statutory mail requirement was peremptory – court rejected their
argument &

Held that the provision was directory

The court found that if it were sent by ordinary post, there was substantial compliance with the
provision –

It was not necessary to follow the requirements to the finest detail – as long as the purpose of the
provision

Has been complied with

The court held that each case must be dealt with in light of its own language, scope & object &
the

Consequences in relation to justice & convenience of adopting one view rather than the other =
this means

The court must not look at the legislative text itself to try to solve the issue (as textualists tend to
do), but

Must instead ask whether the consequences of requiring strict compliance would be fair (just) in
the

Circumstances / practical (functional) in the circumstances (given the purpose of the legislative
provision in
The first place) – this is an open-ended question that can only be solved on the facts of each case
– the

Purpose of the legislation is decisive in this regard

The court took the following into account:

1. The imperative use of the language in the section;

2. The purpose of the section, which was to protect claimants by ensuring that they had
definite proof

Of the date upon which the 60 days period started to run;

3. That if a claimant decided not to register the letter, he forfeited this protection himself &
took the

Risk upon himself; and

4. That the company was not prejudiced in any way by the fact that the letter was sent by
ordinary

Post & received more than 60 days before legal proceedings commenced

In the circumstances, to hold that the company would escape liability on the basis of a
technicality which
Had not prejudiced them at all would be unfair & unjust – the court therefore held that the
provision was

Directory only & that it had substantially been complied with

The decisive thing to note is that the court essentially decided the case on what would be fair
(and practical)

In the circumstances, given the overall purpose of the legislation – it thus applied a purposive
approach

Weenen case:

Dispute arose about the procedure to be followed for the levying of taxes – Local Authorities
Ordinance

Allowed municipalities to assess & levy, once a year, a general water & sewage rate upon all
immovable

Property – Weenen municipality sued VD for payment of his outstanding rates & taxes – VD
denied that the

Taxes were due, based on the argument that the municipality failed to follow correct procedure
for

Assessment of rates & taxes for that year – the ordinance required the municipality to publish a
notice in a

Newspaper stating that the assessment of taxes for the year could be inspected – after the
inspection
Period, 2 further notices listing the total amt of tax on each property had to be published at least
5 days

Apart – the ordinance further stated that the rates & taxes will become due & payable a month
after the

Publication of the last of these notices – municipality however had published only 1 notice in
which the final

Rates & taxes were set out & a period for inspection statedVD argued that the statutory
requierments are peremptory, while municipality argues that they are only
directory
Judgment of court was in favour of VD – the imperative language of the provision (“shall
publish”) had to be
considered bud had also to be balanced against the object & importance of the provision as a
whole
(namely, to establish a democratic system of checks & balances & to render the municipality
accountable to
the ratepayers – these objectives could not be met by condensing the 3 required notices into one
– to
achieve the objectives of the provision, strict adherence to the publication requirements was
required – this
requirement was peremptory & the taxes were thus not due
Court emphasised that what is important is the purpose of the provisions & the consequences if
the
statutory requirements are not strictly adhered to – the question is not whether mechanical
(formal)
compliance with the statutory requirements is required, but rather substantial compliance – full
compliance
is not necessarily literal compliance, but substantial compliance – i.e. compliance with the aim &
purpose of
the legislation within the context of the legislation as a whole
African Christian case:
Local Government: Municipal Electoral Act states that a political party may contest a local
election only if it
had given notice of its intention to do so & if it had paid the required deposit before the
stipulated deadline
During municipal elections, the ACDP gave notice of its intention to participate in the Cape
Town municipal
election, but failed to include a separate deposit in a cheque which covered all the municipalities
in which
the party wanted to contest the election – when the mistake was discovered, the deadline for the
pmt of
deposits had come & gone – the Electoral Commission refused to register the ACDP for the
election on the
basis that the statutory deposit requirement was peremptory – ACDP argued that the provision
was
directory & that it had substantially complied with the provision & pointed out that on the day of
the
deadline, there was a surplus available in its account at the Electoral Commission that could have
been used
as deposit for the Cape Town elections – ACDP appealed to Electoral Court but the court also
held that the
deposit requirement was peremptory & that the ACDP had failed to comply with it – ACDP then
turned to
the CC
CC held that the ACDP had (substantially) complied with the provisions of the Act & ordered the
Commission
to register the party for the Cape Town elections – according to the court there is a general trend
in our law
away from the strict legalistic to the substantive – given this trend, the Q was whether what the
ACDP did
constituted compliance with the statutory provisions viewed in the light of their purpose? Court
held that
the overall purpose of the Act was to promote & give effect to the constitutional right to vote –
the specific
purpose of the Act & the deposit requirement was to establish which parties had the serious
intention to
participate in the elections – the ACDP had given proper notice of its intention to participate in
the Cape
Town elections & had paid over an amt to the Electoral Commission in excess of what was
required – they
had established their serious intention to participate in the Cape Town elections in spite of the
fact that no
specific mention was made of Cape Town – the provisions of the Act must in the circumstances
be treated as
directory – as the ACDP had substantially complied with those provisions, it should be allowed
to participate
in the Cape Town election
Note:
 CC confirmed that the adoption of the purposive approach in our law has rendered obsolete all
the
previous attempts to determine whether a statutory provision is directory / peremptory on the
basis
of the wording & subject of the text of the provision
 This case also illustrates how what is fair and just in the circumstances given the purpose of
the
legislative provision (the test laid down in the Commercial Union & Weenen case) must now be
determined with reference to the object, spirit & purport of the BOR
Unlawful Occupiers case:
Court held that it is clear from the authorities that even where the formalities required by statute
are
peremptory it is not every deviation from the literal prescription that is fatal – even in that event,
the
question remains whether, in spite of the defects, the object of the statutory provision had been
achieved
SOME GUIDELINES
Courts have developed a series of guidelines as initial tests / indicators of the purpose
They are not binding rules but merely guidelines
The purpose of the legislation will always be the decisive factor in establishing whether a
requirement is
peremptory or directory
The application of these guidelines will not provide clear-cut answers to the question involved –
whether a
statutory provision is directory / peremptory cannot be deduced from the provision itself, but
depends on
what is fair, just & practical in the circumstances of each case, given the purpose of the statutory
requirement
Semantic guidelines
Based on the grammatical meaning of the language used in the provision:
 A word with an imperative / affirmative character indicate a peremptory provision (i.e.
“shall” /
“must”)
 Permissive words (i.e. “may”) indicate a discretion & will be interpreted as being directory,
unless
the purpose of the provision indicates otherwise
 Words in negative form indicate a peremptory connotation
 Positive language suggests that the provision is merely directory
 If the provision is formulated in flexible / vague terms, it is an indication that it is directory
Jurisprudential guidelines
Tests based on legal principles which have been developed & formulated by the courts
Sutter – certain tests / guidelines were proposed to determine whether provisions are
peremptory /
directory
These guidelines are more influential than the schematic guidelines & involve an examination of
the
consequences, one way / another, of the interpretation of provisions
 If the wording of the provision is in positive terms & no penal sanction (punishment) is
included for
non-compliance with the requirements, it is an indication that the provision in question should be
regarded as being merely directory
 If strict compliance with the provisions would lead to injustice & even fraud (and the
legislation
contains neither an express provision as to whether the action would be null & void nor a
penalty) it
is presumed that the provision is directory
 Sometimes the historical context of the legislation (i.e. the mischief rule) will provide a
reliable
indication as to whether the provision is peremptory / directory
 Adding a penalty to a prescription / prohibition is a strong indication that the provision is
peremptory – however, this prima facie presumption was rebutted by the purpose of the
legislation
in Standard Bank. On the other hand, the addition of a penal clause may be an indication that the
legislature intended the penalty to be sufficient & that the act should not be declared null & void
as
well
 If the validity of the act would defeat the purpose of the legislation, this is an indication that
the act
(conduct) should be null & void
Presumptions about specific circumstancesThese are nothing more than initial presumptions –
the purpose of the legislation may well prove otherwise
 Where legislation protects the public revenue (i.e. rates, taxes & levies due to the state), a
presumption against nullity exists, even if a penal clause has been added
 Where legislation confers a right, privilege / immunity, the requirements are peremptory & the
right, privilege / immunity cannot be validly obtained unless the prescribed formalities are fully
complied with. Where freedom of an individual is at state, the court will stress the peremptory
nature of a requirement
 If other provisions in the legislation could become superfluous (meaningless) when non-
compliance
with prescribed requirements results in the nullity of the act, there is a presumption that the
requirements are merely directory
 If a provision requires that a certain act must be performed within a prescribed time & the
court
has not been empowered to grant an extension of the time limit, the requirement is presumed to
be peremptory
The supreme Const & specific requiremetns in NB legislation (i.e. Promotion of Access to
Information & the
Promotion of Administrative Justice Act) must always be borne in mind when the issue of exact
compliance / substantive compliance is considered during statutory interpretation
Const itself contains a number of peremptory provisions:
 S2 – “this Const is the supreme law of the Republic…and the obligations imposed by it must
be
fulfilled
 S7(2) – “the state must respect, protect, promote & fulfil the rights in the BOR
 S39(2) – “every court, tribunal / forum must promote the spirit, purport & objects of the BOR
CHAPTER 10 – CONSTITUTIONAL INTERPRETATION
Constitutional interpretation refers to the authoritative interpretation of the supreme Const by the
judiciary
during judicial review of the constitutionality of legislation & government action
Similarities btw statutory & constitutional interpretation = both deal with interpretation of
legislative
instruments
Differences btw statutory & constitutional interpretation:
The status of the supreme Const in the legal order is the main reason for the difference btw
constitutional
interpretation & “ordinary” interpretation – the Const:
 is now the frame of reference within which everything must function, and against which all
actions
must be tested
 is the prism through which everything & everybody must be viewed
 is the fundamental law of SA legal order
 embodies the values of society & aspirations, dreams & fears of the nation
 is the most NB national symbol
 does more than describe the institutional framework of government
Statutory interpretation Constitutional interpretation
Legislation Not a piece of legislation
Adopted by recognised legislative bodies in RSA (an
Act of Parliament)
Adopted by a specially constituted Constituent
Assembly
Legislation contains many technical details & few
general value statements
BOR contains many broadly formulated value
statements & few provisions of technical detail
Legislation mostly applies to one narrowly defined BOR applies to all legislationproblem area
Matiso:
Interpretation of legislation Interpretation of the Const
Directed at ascertaining whether that legislation is
capable of an interpretation which conforms with
the fundamental values / principles of the Const
Directed at ascertaining the foundational values
inherent in the Const
2 reasons why it is essential to study constitutional interpretation as an integral part of statutory
interpretation:
1. S39(2) of Const prescribes that the BOR should be promoted every time legislation is
interpreted –
in order to promote a right in the BOR, one must first interpret that right to determine its content
–
Const prescribes in s39(1) how BOR should be interpreted – in order to meet the obligation in
s39(2) to promote the BOR, we must inevitably turn to s39(1) of the Const
2. Because of the close relationship btw statutory & constitutional interpretation, most legal
scholars
believe that it’s best if the same purposive approach is followed in interpretation of statutes & the
Const
WHY IS A SUPREME CONSTITUTION DIFFERENT?
It is not merely another legislative document, but the supreme law of the land
A constitutional state (which has a supreme constitution) is underpinned by 2 foundations:
1. A formal one – the institutional power map of the country: which includes aspects such as the
separation of powers, checks & balances on the government & the principle of legality
2. A material / substantive one: which refers to a state bound by a system of fundamental values
such
as justice & equality
Karpen describes the formal & substantive components of a constitutional state as:
The value orientated: concerned with intensely human & humane aspirations of personality,
conscience &
freedom
The structure orientated: concerned with vastly more mundane & mechanical matters like
territorial
boundaries, local government and institutional arrangements
It is a formal power map: it sets out the institutional & organisational structures & procedures of
the State
It contains a substantive ethos / moral & ethical map: it sets out the foundational values of the
State (which
includes a justiciable BOR) – state authority is bound by a set of higher, substantive legal norms
It contains language which is rich in symbolism: it sets out the aspirations of the nation – it is
both a shield
against abuse & a positive instrument to transform society in view of the fundamental rights &
values
Ordinary legislation lacks the organisational, ethical & symbolic breadth of the Const – however,
during the
past decade, a number of Acts have been passed by Parliament that all contain a highly symbolic,
aspirational & ethical message – these are known as quasi-constitutional legislation (i.e.
Employment Equity
Act)
HOW TO INTERPRET THE CONSTITUTION
Note: this section forms the heart of this chapter & needs to be studied carefully1. S39(1) read
together with the preamble and S1 of the Const
S39(1) of the Const provides:
When interpreting the BOR, a court, tribunal or forum –
(a) Must promote the values which underlie an open & democratic society based on human
dignity, equality & freedom;
(b) Must consider international law; and
(c) May consider foreign law
(a) & (b) are peremptory = court/tribunal/forum MUST make value judgments –
(c) provides that the court/tribunal/forum MAY also refer to foreign law – i.e. those legal
principles
(in particular case law) which do not conflict with the SA legal order
s39(1)(a) must be read with the supremacy clause (Preamble), as well as s1 of the Const
S1 of the Const provides:
RSA is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality & the advancement of human rights & freedoms
(b) Non-racialism & non-sexism
(c) Universal adult suffrage, a national common voters roll, regular elections & a multi-party
system of democratic government, to ensure accountability, responsiveness & openness
The values mentioned in s39(1)(a) can be found in the Preamble & s1 of the Const = as such, the
BOR should be interpreted as if its purpose is to give more detailed content / effect to the
Preamble
& foundational provisions of s1. In fact, It has been suggested that the preamble & s1 of the
Const
form the core of the Const & can therefore never be amended. The BOR, on the other hand, can
be
amended with the support of a special majority
2. Principles formulated by the courts
 A supreme const must be given a generous & purposive interpretation (Shabalala case)
Nyamakazi case held that this is necessary as it enables the court to take into account more
than legal rules, i.e.:
o Objectives of the rights contained therein;
o Circumstances operating at the time when the interpretation has to be determined;
o Future implications of the Const;
o Impact of the said construction on future generations;’
o Taking into account of new developments & changes in society
 Case law refers to a liberal interpretation which refers to flexibility & generosity taking into
account the terms & spirit of the Const, the intention of the framers & objectives of &
reasons for the legislation – in the process, the ordinary rules of statutory interpretation
must give way to this more adaptable & flexible method
 The spirit & tenor of the Const must be adhered to (Acheson) = the values & moral
standards underpinning the Const must be taken into account throughout the entire
interpretation process A provision of the Const cannot be interpreted in isolation, but must be
read in the context
as a whole which includes the historical factors that led to the adoption of the Const in
general, and the fundamental rights in particular (Makwanyane)
 Respect must be paid to the language employed in the Const – although the text is
balanced & qualified by various contextual factors, the context is anchored to the particular
constitutional text – in other words, historical context & comparative interpretation can
never reflect a purpose that is not supported by the constitutional text as a legal instrument
(Shabalala).
 The courts must protect human rights (Juvenile)
 Const has to be drafted in context & setting existing at time when case is heard, and not
when it was passed, otherwise the growth of society will not be taken into account – the
Const must be interpreted so that it gives clear expression to the values the Const intends
to nurture for the future – this is because the Const was drafted with a view to the future,
providing a continuing framework for the legitimate exercise of government power &
protection of individual rights & freedoms (Khala)
 Constitutional interpretation is a question of law: if the particular legislation is consistent
with the Const, it is valid & in force; if not, the court which exercises a judicial check in
terms of the Const will declare it unconstitutional & strike it down. Const interpretation is
an exercise in the balancing of various societal interests & values
 Const interpretation is an inherently flexible process – it is not a dogmatic & mechanical
application of predefined approaches & rules – allowance must be made for changing
circumstances (Norje)
 Principles of international human rights law & foreign law must be applied with due regard
for the SA context (Zuma) – i.e. constitutional interpretation must start & end with the SA
Const (Makwanyane)
 All judges & judicial officers are obliged to interpret & apply legislation so as to give effect
to the fundamental values & rights in the supreme Const – this is an ongoing, value-based
struggle btw competing rights & values – Prince case: what it requires is the max
harmonisation of all the competing considerations, on a principled yet nuanced & flexible
case-by-case basis, located in SA reality yet guided by international experience, articulated
with appropriate candour & accomplished w/o losing sight of the ultimate values
highlighted by our Const – in achieving this the court may frequently find itself faced with
complex problems as to what properly belongs to the discretionary sphere which the Const
allocates to the Legislature & the Executive, and what falls squarely to be determined by the
Judiciary
See Activity 2 on pg 90 of SG
 There are no absolute, definite & final answers in constitutional interpretation (Mhlungu)
 Constitutional interpretation involves an ongoing but principled judicial dialogue with
society, in this dialogue marginalised groups must be empowered to participate in the
dialogue to be heard (Mhlungo)
 Constitutional values must be actively promoted in the interpretation of the BOR The
separation of powers must be respected when the BOR is interpreted;
 The Const must be used as an instrument for social & economic empowerment
3. A comprehensive methodology
Botha & Corder’s 5 techniques of interpretation:
(a) Grammatical interpretation
Acknowledges the NB of the role of the language of the constitutional text – focuses on the
linguistic & grammatical meaning of the words, phrases, sentences & other structural
components of the text
This includes the rules of syntax = deals with the order of words in a sentence
This does not imply a return to literalism & orthodox “plain meaning rule” – it merely accepts
the authoritative constitutional text as a very NB piece in the jigsaw puzzle of constitutional
interpretation
(b) Systematic (or contextual) interpretation
Concerned with the clarification of the meaning of a particular constitutional provision in
conjunction with the Const as a whole – the emphasis on the “wholeness” is not restricted to
the other provisions & parts of the Const, but also takes into account all contextual
considerations such as the social & political environments in which the Const operates
(c) Teleological (value-based) interpretation
Entails a value-coherent construction – the aim & purpose of the provision must be ascertained
against the fundamental constitutional values – the fundamental values in the Const form the
foundation of a normative constitutional jurisdprudence during which legislation & actions are
evaluated against (and filtered through) those constitutional values
(d) Historical interpretation
Travaux préparatoires refers to discussions during drafting of an international treaty – however,
it is also increasingly used re the deliberations of the drafters of a supreme constitution
A supreme Const which includes a BORhas been described as a “living tree” = it is a dynamic
document which must be interpreted in the light of ever-changing circumstances, values &
perceptions
However, if the deliberations of the constitutional drafters become the deciding factor during
the interpretation of such a Const, there will be no development & adapatability – the result
will be that future generations will be bound by a single stroke of constitution-making, with no
growth, dialogue, discourse, changes or flexibility possible
This means travaux préparatoires of the Const may be consulted as an external aid, but they
cannot be the deciding factor –
Makwanyane case: court explained that the Multi-Party Negotiating Process was advised
by technical committees, and the reports of those committees on the drafts are the
equivalent of the travaux préparatoires relied upon by international tribunals – suchbackground
material can provide a context for the interpretation of the Const and, where it
serves that purpose, it may be used
(e) Comparative interpretation
Court examines international law & constitutional decisions of foreign courts – this must be
done with due regard to the unique domestic context of the Const under consideration
Makwanyane case: we are required to construe the SA Const & not an international
instrument / the const of some foreign country – this has to be done with due regard to our
legal system, our history & circumstances & the structure & language of our own Const – we
can derive assistance from public international law & foreign case law, but we are in no way
bound to follow it
These five aspects were identified in Makwanyane case –
In order to resolve an issue we must:
Examine the relevant provisons of the Const, their text & their context (grammatical
interpretation): the interplay btw the different provisions (systematic interpretation); legal
precedent (historical interpretation) relevant to the resolution of the problem both in SA
(historical interpretation) & abroad (comparative interpretation); the domestic CL (historical
interpretation) & public international law (comparative interpretation) impacting on its possible
solution; factual & historical considerations (historical interpretation) bearing on the problem;
the significance & meaning of the language (grammatical interpretation) used in the particular
provisions; the content & sweep of the ethos (teleological interpretation) expressed in the
structure of the Const; the balance to be struck btw different & sometimes potentially
conflicting considerations reflected in its text; and by a judicious interpretation & assessment of
all these factors to determine what the Const permits & what it prohibits
S39(1) of the Const implicitly prescribes a teleological interpretation of BOR (the Bill must be
read against
the foundational provisions of the Preamble & s1 in an effort to promote the foundational
values / spirit of
the Const.
S39(1) (b) and (c) explicitly prescribes a comparative interpretation of the BOR (the Bill must be
read against
the background of the growing international human rights discourse & may be read against the
background
of similar rights in other democratic countries)
See Activity 3 on pg 91 of SG