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IOS Notes Final

Interpretation of Statutes (University of South Africa)

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WHAT IS “INTERPRETATION OF STATUTES”?

It’s the juridical understanding of legislation; it deals with the body of

rules and principles used to construct the correct meaning of
legislative provisions to be applied in practical situations.

Statutory interpretation is similar to the interpretation of wills = the

author of the document can’t be called upon to clear up uncertainties
in the text, concretising the text to be construed so as to cater for the
exigencies of an actual or hypothesized concrete situation.

The courts are obliged to use specific rules of interpretation to

construe the meaning of the document.

Interpretation of legislation requires more than the mere reading of

the provisions: i.e. everyone has the right to life in Section 11.

S v Makwanyane: the Constitutional court held that the right to life

means that the state can’t take someone’s life in retribution and the
death penalty was declared unconstitutional.

Q: does this mean that you can’t kill in self-defence?

S v Walters: the court held that the existing right to kill someone in self-
defence wasn’t abolished by the Constitution

In Soobramoney: the Constitutional right to life doesn’t mean the state

has a duty to keep all terminal patients alive in all circumstances

Carmichele v Minister of Safety and Security: the Constitutional Court

linked the Constitutional right to life and freedom of security of a person
to the Constitutional duty imposed on the state and its organs not to
perform any act that infringes these rights

Why is interpretation not a rule like activity? / Why can IOS not
be like a computerized fashion?

The rules of Interpretation of Statutes can overlap and it is not always

clear which rule to applies. When deciding, the following must be
taken into consideration:
 The set of facts differ from case to case, as well as the context of
legislation
 The courts are not in one mind set when it comes to the
application of rules, therefore there is no particular pattern
involved when it comes to the application.
 The law is not objective, neutral or value-free: interpreters have
their own pre-understanding of legislation based on their history,
background experiences, personal beliefs, etc.

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 The spirit and the aim of fundamental rights must be promoted

during the interpretation of all legislation. Interpretation involves
value-judgments

The new Constitutional order

Traditionally, interpretation of statutes in South Africa was saddled

with unnecessary (and unacceptable) baggage: a confusing system of
maxims and canons of interpretation, a golden rule, overriding
principles, so called ‘primary, secondary and tertiary’ rules, should be
ascertained.
Traditionally, the South African rules of statutory interpretation were
based on the sovereignty of parliament, while a fundamental rights
dispensation is based on a supreme Constitution and fundamental
values.

Golden rule of interpretation – Give effect to the words as they appear

in the text.

Primary rule: read the words of the text and give effect to it.
Secondary rule: if the words are ambiguous or unclear then look to
your secondary aids – intra textual aids.
Tertiary rule: if the secondary aids still don’t assist in
ascertaining the purpose of the legislation, then we
look to our tertiary aids – extra textual aids.

Act: refers to a parliamentary statute or the legislation of the

provincial legislature. act: refers to conduct
Concretization: refers to the final phase of the interpretation process
during which the legislative text, the purpose and the situation are
harmonized to bring the process to a conclusion
Constitutionalism: refers to a government in accordance with the
Constitution: the government derives its powers and is bound by the
Constitution. It refers to a state where the law is supreme and
government and state authorities are bound by the law.
Constitutional state (rechtsstaat):
Refers to a state where Constitutionalism prevails: a country where
the Constitution is supreme. There are 2 types:
Formal: includes separation of powers, checks and balances and the
principle of legality
Material: refers to a state underpinned by a system of fundamental
values of justice and equality.
Context: refers to the circumstances surrounding something or the
situation in which something happens
Contextualisation: is the process during which the legislative text is
read and researched within its total context in an effort to ascertain
the purpose of the legislation

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Entrenched: refers to provisions in the Constitution, which can only

be altered, amended or repealed with difficulty. Legislation is usually
changes by a simple majority vote in the legislature.
Intra Vires: when a government organ acts within the scope of the
powers conferred on it
Judicial law making: although courts are primarily involved in the
application of law, they also have a secondary law making function.
They develop common law to adapt to modern circumstances as well
as giving form, substance and meaning to particular legislative
provisions in concrete situations. It means the judiciary can modify or
adapt the ordinary meaning of a legislative provision in such a way
that it conforms with the purpose or aim of the legislation
Jurisdiction: means the competency of a particular court to
adjudicate on a specific case – determined by 2 factors:
1) The geographical area in which it operates
2) The types of cases the courts may hear
Law: the law consists of all forms of law, while a law is a written
statute enacted by those legislative bodies which have authority to
make laws:
• Legislation
• Common law: composed of rules which weren’t written down
originally but have been accepted as the law of the land
• Indigenous law
• Case law
Legality: refers to lawfulness and control of arbitrary state action –
government by the law, under the law.
All government action is governed by the letter as well as the spirit of
the law
Legislature: this refers to an elected body which has the legal power
to enact laws
Legitimacy: is the level of acceptance of a Constitution, government
or legal system – it refers to the faith of the population in the system
Locus Standi: deals with access to the court – one has a place of
standing in the court.
It determines whether a person has the right to be heard by the court
– who may bring a case before the court
Parliamentary sovereignty: means that parliament is supreme – not
only is parliament the highest legislative body, capable of enacting any
law it wishes, but no court may test these laws against standards
such as fairness or equality
Proclamation: is a specific category of subordinate legislation
Promulgation: legislation is made known to the public by
promulgation and comes into operation when its published in the
official gazette
Purpose: the purpose of the legislation means the legislative scheme
or the object or aim of legislation

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Supreme Constitution: the Constitution is the highest law of the

land. Although parliament remains the highest legislative body in a
system of government with a supreme Constitution, any legislation
that is in conflict with the Constitution is invalid
Testing legislation: is known as Constitutional/ judicial review, this
refers to a process whereby legislation is alleged to be in conflict with
the Constitution is reviewed by the court
Textual approach: literal or plain meaning approach
Ultra vires: the act of a government organ, which goes beyond the
authority conferred on it
Legislation: Enact: formulate and pass, Amend: change existing
legislation, Repeal: cancel existing legislation, Promulgate: make
legislation known to the public, Adopt: accept or pass legislation

3 Phase process of interpretation

1) Initial phase: a number of basic principles are used as a point of

departure:
a) The supreme Constitution and the Bill of Right
b) Must ascertain the purpose of the legislation and apply it in light
of the bill of rights
c) The text of legislation is read to find the initial meaning of the
text, bearing in mind the common law presumptions and a
balance between the text and context of the legislation

2) Research phase: the purpose of the legislation is determined by

studying all the factors and considerations that may have bearing
on the particular legislation.
When the purpose of the legislation has been determined the next
stage comes into play.

3) Concretization phase: the legislative text, the purpose of the

legislation and the facts of a particular case are harmonized to
bring the process to a just, purposive and meaningful end within
the framework of the purpose of the legislation. During this process
the spirit, purport and aim of the Constitution must be promoted.

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Questions

What the “golden rule” is and what other rules apply under the
textual approach

The golden rule: Firstly, you apply the primary rule – you look at the
wording of the legislation and apply it, then if the meaning of the
words is too ambiguous, apply your secondary rule – your intra
textual aids. If they do not assist you, apply your tertiary rule – extra
textual aids.

Briefly explain, with examples from case law, how contextualists

interpret legislation.

Initial: Look at your basic principles: Constitution, the purpose of the

legislation and all common law presumptions.
Research: Determine the purpose of the legislature by studying all the
factors (intra and extra textual aids).
Concretization: The legislative text, the purpose of the legislation and
the facts of the case are harmonized to bring the process to a
conclusion. (apply it to the set of facts)

What are the three phases of the interpretive process in the

model that is suggested by Botha in the textbook? Explain each
phase BRIEFLY.

The three phases are “the initial phase”; “the research phase” and “the
concretisation phase”. In the initial phase a number of basic
principles are used as a point of departure namely the Constitution,
the text of the legislation, common law presumptions, the balance
between the text and context. In the research phase the legislation
intra-textual and extra-textual factors are studied to ascertain the
purpose of the legislation. During the concretisation phase the
legislative text, the purpose and the facts of the case are brought
together to reach a conclusion.

DEFINE what the term “law” means as it is used in the

Interpretation Act 33 of 1957.

“Law” means any law, proclamation, ordinance, Act of parliament or

other enactment having the force of law.

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WHAT IS LEGISLATION?

Legislation is written law enacted by a body or person authorized to do

so by the Constitution or other legislation.

Section 2 of the Interpretation Act: ‘law’ means any law, proclamation,

ordinance, Act of Parliament or other enactment having the force of
law

Section 239 of the Constitution: in the Constitution, unless the

context indicates otherwise –
‘national legislation’ includes:
a. Subordinate legislation made in terms of an Act of parliament
and
b. Legislation that was in force when the Constitution took effect
and that is administered by the national government
‘provincial legislation’ includes:
a. Subordinate legislation made in terms of a provincial Act and
b. Legislation that was in force when the Constitution took effect
and that is administered by a provincial government

Types of legislation

Original legislation: derives from the complete and comprehensive

legislative capacity of a legislative body – its known as direct or
primary legislative capacity since it’s derived directly from the
Constitution

Subordinate legislation: is known as delegated legislation.

Acts of Parliament are sometimes drafted in broad terms because the
respective legislative bodies aren’t continuously in session to deal with
every possibility in changing society = delegated legislation then adds
flesh

Is the distinction still important?

In the past parliament was sovereign and the courts couldn’t test the
contents of parliamentary legislation. Only delegated legislation could
be reviewed by the courts.
With the commencement of the supreme Constitution, the distinction
between original and subordinate legislation isn’t as watertight as it
used to be:
• In a sense all legislation is subordinate because everything is
subject to the Constitution and the courts can test all legislation
against the bill of rights
• In terms of Section 40 of the Constitution: the government
comprises of the national, provincial and local spheres of
government which are distinctive, interdependent and
interrelated

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Original legislation
1) Acts of Parliament: the Constitution is the supreme law of the
land and any law or conduct inconsistent with it is deemed to
be invalid
2) New provincial acts: legislation enacted by the 9 new provincial
legislatures
3) Provincial Ordinances: ordinances applies to old geographical
areas of the former province concerned
4) Legislation of the former homelands: territories were granted
complete legal capacity with regard to specific matters (e.g.
health, education)
5) Legislation of the former TBVC states: remains valid as part of
SA law in the area where it was previously applied because
these states were re-incorporated into the Republic
6) New municipal legislation: municipal councils may enact by-
laws in respect of local governmental matters

Subordinate legislation:
1) Existing Provincial proclamations and regulations: the legislative
authority for the provinces was transferred to the administrator
of each province. The administrator enacted, repealed and
amended provincial legislation by proclamation and could issue
regulations under existing/new parliamentary acts
2) New provincial proclamations or regulations: new provincial
legislation will be able to empower other functionaries like the
Premier or members of cabinet to add flesh to provincial acts
through proclamations
3) Other proclamations and regulations: if the enabling act is
repealed, all the subordinate legislation in terms of that act also
cease to exist unless the new act expressly provides otherwise

WHAT IS NOT LEGISLATION

 Green and white papers

 Policy documents
 Legal notices
 Reports
 Draft bills
 Discussion documents

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Questions

In terms of section 89 of the Electoral Act, the Commission may

make regulations. Will the rules of statutory interpretation be
applicable to the interpretation of those regulations? In your
answer you should also mention the difference between original
and subordinate legislation and give two examples of each.

Original – also known as “direct” because it comes directly from the

Constitution. It is “primary legislative capacity” and derives from the
complete and comprehensive capacity of a legislative body. -
Examples: New Acts of Parliament; Legislation of the former TBVC
states
Subordinate – also known as “delegated”. This is legislation made by a
body, which is not part of any legislature in South Africa because
original legislation can sometimes be drafted too widely so delegated
legislation then ‘adds the flesh’.
Examples: Existing Proclamations and Regulations; New
Proclamations and Regulations
Subordinate rules will apply.

List the documents that, although published in the Government

Gazette, do not constitute legislation.

 Green and white papers

 Policy documents
 Legal notices
 Reports
 Draft bills
 Discussion documents

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THE COMMENCEMENT OF LEGISLATION

It’s important to distinguish between the adoption of legislation and

its promulgation:

Adoption: refers to the different stages, readings and processes

through which the particular legislation has to pass before its
accepted and issued by the relevant legislative body.
Promulgation: refers to the process through which the legislation
commences and is formally put into operation.

The passage of legislation is the term used to describe all the various
stages through which legislation passes, before it’s adopted.
The promulgation of legislation is the term use for notifying the
population of the adoption of the legislation – this is done by notice in
the Gazette = its usually also the moment that legislation commences
or comes into force, unless the legislation states another date.

Question: does legislation commence on the date of publication or the

date when it becomes known throughout the country?

Queen case: date of publication

Author Steyn: suggests a period (8 days) between the actual
publication and when the law becomes operative
Publication: commencement of legislation

Section 13 (1) of the Interpretation Act: of the Act stipulates that

unless the particular legislation itself provides another date, it
commences on the day of its publication in the Gazette.

Date of commencement:
a) date specified in the legislation
b) date to be proclaimed
c) date published in the Gazette

Section 13 (2): the day begins immediately at the end of the previous
day.

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THE PRESUMPTION THAT LEGISLATION ONLY APPLIES TO

FUTURE MATTERS

Unless the contrary appears either expressly or by necessary

implication, it’s presumed that the legislature intends to regulate
future matters only.
According to case law (Transnet) this rule is based on the prevention of
unfair results.
Unless a retrospective intention is clear, it’s presumed that the
legislation applies to the future and not the past.
An enactment may provide expressly that it has retrospective force.
The presumption could also be rebutted if it appears from the
enactment that the legislature intended it to be retroactive.
Such a necessary implication could be inferred if the legislation would
result in absurd or unfair results should it not be retroactive.

The common law view is that unless the contrary appears, an act
expressly retroactive in nature won’t affect actions already brought to
a close during a repealed acts existence

If the enactment deals with procedures:

The presumption doesn’t apply if the retroactive legislation deals with
procedures.
New rules of procedure apply to future cases, the facts of which may
date from the past.
The new act is retroactive only in that the new procedural rules apply
even in the case of claims or disputes, which arose before the new
rules came into effect.

Therefore: the presumption doesn’t apply if the retrospective

legislation deals with procedures where no rights are affected or if the
application will benefit the individual.

Grand Wholesalers v Ladysmith Metal Industry

The appellant was the defendant in an action instituted in the

Magistrate court by the respondent. The claim was for R 4 666.29.
The amendment to the Magistrate Court Act that increased the
monetary jurisdiction to R5000 only came into effect after pleadings
had closed. The appellant said that the court didn’t have jurisdiction.
The Magistrate stated that as it was procedural it did have
retrospective effect.
On appeal the court held that there was no retrospectivity and the
Magistrates court did not have jurisdiction.

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Kruger v President Insurance made it easier to decide whether

legislation is retrospective by implication. It is if:
1. vested rights have not been affected by the retrospective
operation of the legislation
2. the purpose of the legislation is to grant a benefit or to effect
even handedness in the operation of law

If the enactment favours or disfavours the individual:

If the retroactive operation of legislation will benefit the individual, the
presumption doesn’t apply.

R v Sillars: the Act reduced the existing penalty after the A had
committed the crime, but before sentence was passed. The court found
that the presumption against retrospective legislation had in this
instance been rebutted by other considerations.
The amendment was applied retrospectively and the new more lenient
penalty was imposed.

On the other hand if the amending act places the individual in a worse
position than before, the presumption applies.

R v Mazibuko: the court found that if the penalty provided for in an Act is
increased by an amending Act, the presumption against retrospectively
applies.
Here the appellant appealed against the death sentence imposed for
robbery. The previous act was amended after the crime was committed
but before sentence was passed. In terms of the amendment, the
death sentence could be imposed for robbery. The earlier more lenient
penalty was therefore imposed.

Later decisions

S v Smith: held that if an Act was amended after sentence was

imposed, a court may not impose a penalty on appeal, which wasn’t a
competent sentence at the time of conviction.

The AD was faced with a case where the A had been sentenced before
the amendment, which reduced the penalty, came into operation.
On review it was held that the sentence was too harsh and
consequently set it aside
On appeal it was decided that the A was in the same position as
someone who hadn’t yet been sentenced. The court had to sentence
the A anew and could impose the amended lesser sentence.

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Influence of the new Constitution

Section 35 (3): every Accused has the right to a fair trial which
includes the right not to be convicted of an act or omission that wasn’t
an offence under either national or international law at the time it was
committed.

Section 35 (3)(n): every Accused has the right to a fair trial which
includes the 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.

Offences can’t be created and punishments can’t be increased

retrospectively – these parts of the presumptions, which prohibit
retrospective offences and increased punishments, are now
entrenched as a fundamental right in the Constitution.
In all other respects the presumption will apply as in the past.

Although the legislature may expressly enact legislation which is

retrospective, the court will have to test it against the Bill to ensure
that it doesn’t infringe on one of the other fundamental rights.

This presumption still applies today!

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Questions

The Electoral Act was adopted on 5 July 2000, assented to

(signed) by the President on 6 July 2000, and published in the
Government Gazette on 11 July 2000. Yet it is said that the
Electoral Act commenced on 11 July 2000. Is this not a printing
error? In your answer you must refer to the provisions of section
13 of the Interpretation Act 33 of 1957

Queen v Jizwa: the date of publication, irrespective of whether it has

come to the knowledge of everyone.
The author Steyn: there should be a period between the date of
publication and the date of commencement (8 days) to enable it to
come to the public’s knowledge.
Legislation – Section 13
Section 13(1) – if no date is provided, legislation will commence the
date on which it is published in the Government Gazette.
This lays down three options of when legislation can commence:
(a) The date specified in the legislation
(b) The date to be proclaimed
(c) The date published in the Gazette
Thus it commenced on 11 July 2000

Distinguish between the promulgation and adoption of legislation.

Adoption of legislation means the passage of legislation through its

various stages in the legislature until it is passed. Promulgation
means the publication of the legislation in the Government Gazette It
is making the legislation known to the public and it is formally put
into operation.

Legislation may come into operation in three ways. Name them.

(a) The date specified in the legislation

(b) The date to be proclaimed
(c) The date published in the Gazette

David killed Moses during a fit of road rage on 31 January 2003.

He was convicted of murder on 31 March 2004. The case was
then postponed to 31 May 2004 for sentencing. On 1 February
2004 a new Road Traffic Act was adopted by Parliament. The Act
includes new sentencing options for people convicted of road
rage. The Act was published in the official Gazette on 31 May
2004. On the same day (the day earlier set aside for sentencing),
the question arose whether the sentencing provisions of the new
Road Traffic Act could be applied to David’s case. The State
argued that the new law had not yet come into operation, and
even if it has, the law as it was when David committed his offence

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should be applied to the case. Provide a legal opinion about the

matter, dealing, with: -

(1) the commencement of legislation,

In terms of section 13(1) read with subsection (2) legislation

commences on the day of its publication in the Gazette unless another
day is specified in the legislation concerned and the day begins
immediately on the expiry of the previous day. The reason why
legislation must be published is to make people aware of such
legislation. If the government Printer is, for some reason, unable to
print the Gazette, the President may prescribe alternative procedure
for the promulgation of the legislation concerned. The Constitution
also requires legislation to be published before it commences. Applied
to the facts at hand, the Road Traffic Act came into operation on the
31 May 2004. Whether the Act applies to David’s case depends on
whether it is retrospective. This is dealt with fully below.

(2) the presumption that legislation only applies to future

matters.

It is presumed, unless the contrary appears either expressly or by

necessary implication, that legislation applies to future matters only.
If the enactment deals with procedure, the presumption does not
apply. However, if the retroactive application of an enactment would
benefit the individual, the presumption also does not apply. For
example in the Silas case the amending Act reduced the existing
penalty after the accused had committed the offence, but before
sentence was passed. The court held that the presumption against
retrospectivity had in this case been rebutted by other considerations.
The amendment was applied retrospectively and the new more lenient
penalty was imposed. On the other hand, if the amendment places the
individual in a worse position than before, the presumption will apply.
This is in fact what was held by the court in Mazibuko. In this case,
the court found that if the penalty provided for in an Act is increased
by an amending Act, the presumption against retrospectivity applies.
In addition, the Constitution expressly provides (section 35(3)(n)) that
the accused person has the right to the benefit of the least severe
punishment if the prescribed punishment had been changed between
the time that the offence was committed and the time of sentencing.
Therefore, whether the presumption and the Constitutional provision
will apply in this case depends on whether the new Act places the
accused in the worst or better position.

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DEMISE AND AMENDMENT OF LEGISLATION

Modificative interpretation:
Modification occurs when the initial meaning of the text doesn’t
correspond fully to the purpose of the legislation = where the text has
stipulated either more or less than its purpose or when the initial
meaning of the text is in conflict with the Constitution.
If the purpose indicates that modification is necessary – in principle
there are 2 possibilities:
1) Either the initial meaning of the text is reduced (restrictive
interpretation)
2) The initial meaning of the text is extended (extensive
interpretation)

Reading down and reading in and severance

Reading down: interim Constitution provided that if legislation is on
the face of it unconstitutional but is reasonably capable of a more
restricted interpretation which is Constitutional and valid – use it – it
isn’t repeated in the 96 Constitution but courts can rely on the
common law presumption = law doesn’t contain futile or meaningless
provisions

Severance: to cut out the bad in order to save the good.

Reading in: in exceptional circumstances the court will read

something into a provision to rescue it – should be applied with
caution as the courts are making legislation:

National Coalition for Gay and Lesbian Equality:

Constitutional Court laid down a number of principles to be
considered and followed before severance and reading in is applied:
1. The result must be consistent with the Constitution
2. It must interfere with existing law as little as possible
3. The courts must define how the legislative meaning should be
modified to comply with the Constitution
4. Courts must be faithful to the purpose of the legislation
5. The remedy ought not be granted where it would result in an
unsupportable budgetary intrusion.

In this case the Constitutionality of Section 25(5) of the Immigration Act

was attacked. This section stated that if a resident of South Africa’s
child or spouse wanted to obtain immigration, it was possible. However,
it excluded partners in a same sex life partnership. The court found that
the word “spouse” should be read to include partners in a same sex life
partnership.

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With reading in the courts will try to rescue a provision from the fate
of unconstitutionality by cutting out the offending part to keep the
remainder Constitutional and valid

Invalidation of legislation
Section 172 – courts must declare legislation, which is inconsistent
with the Constitution invalid – this may have immediate effect or it
may be suspended to allow the legislature to correct the defect

Repeal and substitution: Section 11 of the Interpretation Act = the

repealed law remains in force until the substituted provision comes
into force. (S v Koopman)

S v Koopman
The accused was found guilty in the Magistrate’s court on Contravention
of the Road Traffic Act and was sentenced to a fine and the
endorsement of his driver’s license.
On review the question was whether the endorsement was valid, as the
act had been repealed.
The provisions of the act providing for the suspension, endorsement and
rescission of a driver’s license hadn’t yet come into operation.
The court held that in terms of Section 11 of the Interpretation Act, the
provision providing for the endorsement was still in operation.

Malgas: the court held that if the provision of an earlier statute is

incorporated into a subsequent statute, the incorporated provisions
aren’t affected when the earlier statute is repealed. These provisions
were in fact twice adopted as legislation.

Effects of repeal:

Section 12 (2) of the Act: where a law repeals any other law, then,
unless the contrary intention appears the repeal shall not:

(a) Revive anything not in force or existing at the time at which the
repeal takes place (When an Act, which declared something
illegal is repealed, the repeal does not have retrospective effect,
declaring legal, that which was illegal before its repeal. Nourse v
Van Heerden (illegal abortion))
(b) Affect the previous operation of any law so repealed (if the
legislation was executed properly it will remain in force) (Estate
Crosby)
(c) Affect any right, privilege, forfeiture or punishment incurred in
respect of any offence committed against any law so repealed
(Barlows manufacturing)
(d) Affect any investigation, legal proceeding or remedy in respect of
any rights etc.(R v Sutherland, Keagile)
(e) An enquiry under an Act must continue, even if the particular
Act is repealed before the enquiry is completed. (S v Erasmus)

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Nourse v Van Heerden:

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 trial commenced on the 27
November 1992, but was not yet finished in 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 no longer illegal
and as a result his client’s actions did not constitute a crime anymore.
The physician’s legal representative based his application on the
following arguments:
• The provisions of the Abortion and Sterilization Act have not been
applied since the mid-nineties and as a result those provisions had
become 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 and
• In terms of the fundamental values referred to in section 1 of the
Constitution, as well as the Bill of Rights, the prohibition on
abortions is in any event retrospectively unconstitutional.

The court found that legislation cannot be abrogated by disuse, and

must be repealed by competent legislation. Existing legislation remains
in force until repealed or declared unconstitutional. The trial started
before the repeal of the Abortion Act and in terms of section 12(2) the
trial must be completed as if the Abortion Act had not been repealed.
Also the Abortion Act was never declared unconstitutional so therefore
the trial had to be completed in accordance with the law that was in
effect at the start of the trial.

Estate Crosby v Wynberg Muncipality:

A valuation list was drawn up and an appraiser was sworn in. all of this
was properly done, but before the session of court could take place, the
authorizing act was repealed and replaced. The court decided that the
valuation list and the oath of the appraiser would remain valid in terms
of Section 12(2)(b).

Barlow’s Manufacturing Co Ltd v Metal Allied Workers Union:

The AD held that the right to appeal in terms of the repealed legislation
was a material right and not merely a procedural matter and as such
still applied.

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Keagile v Attorney General Transvaal:

The appellant appeared in court in 1982 on the charge of contravening
the Internal Security Act. He was refused bail. The act was then
repealed and replaced. The defence argued that the Attorney General
could not issue his declaration for the refusal of bail in terms of the
previous act because it was repealed before the declaration was made.

Explain the demise/repeal of legislation?

1. Legislation can’t be abrogated by disuse: it must be repealed by
a competent body – legislation in force when the ‘96 Constitution
took effect, remains in force until amended or repealed or
declared unconstitutional.
2. If enabling legislation is repealed, all subordinate legislation
issued in terms of such enabling legislation also ceases to exist
– unless the new legislation expressly provides otherwise.
3. When later legislation repeals earlier legislation and substitutes
the repealed provisions, the repealed provisions will remain in
force until the new provisions come into operation (Section 11)
4. If the provisions of earlier legislation are incorporated into
subsequent legislation, the incorporated provisions aren’t
affected when the earlier legislation is repealed.
5. If legislation is partially repealed, the remaining provisions
must be interpreted in their context, which could include the
repealed provision (Morake v Dubedube)
6. If X is repealed and re-enacted as Y, all references to X in other
legislation must be construed as references to Y
7. Section 12(2) – all actions, transactions, processes,
prosecutions etc. which are instituted, but not yet completed,
in terms of legislation which has meanwhile been repealed,
must be completed as if the legislation hadn’t been repealed
(Transnet limited)
8. If legislation which changed a common law rule is later
repealed, the common law rule is revived (Rand Bank v De
Jager)
9. All court proceedings, which were pending when the 96
Constitution took effect, must be completed in terms of the
repealed ‘93 Constitution, unless the interests of justice require
otherwise.
10. Any unfinished matters before parliament, which started in
terms of the repealed ‘93 Constitution, must be completed in
terms of the ‘96 Constitution.

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THE PRESUMPTION THAT LEGISLATION DOES NOT INTEND TO

CHANGE THE EXISTING LAW MORE THAN NECESSARY

COMMON LAW
In Seluka v Suskin and Salkow, it was held that the presumption is
rebutted if legislation expressly provides that common law is being
altered. (If the legislature expressly alters the common law, the
presumption does not apply.)

LEGISLATION
An attempt should be made to read earlier and subsequent legislation
together and to reconcile them (Rieger). This presumption is still
applicable today because of the reading down clause and section 233.

An example of how this presumption applied:

Government of the Republic of South Africa v Government of Kwa Zulu

Natal (1983) – where there was an attempt to take back a section of
land. In terms of the Black Administration Act (1927) there is no
requirement of any prior consultation but the Self-Governing
Territories Constitution Act (1971) requires a consultation before
altering any territory. It was held, that by implication the 1971 Act
repeals the 1927 Act where there is conflict.

In this presumption, you can further include – Section 11, law is not
abrogated by disuse, discussion on reading down.

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Questions

You convince the Commission that the current deposit

requirement is unconstitutional. However, the Commission
argues that section 14(1)(b) of the Electoral Act can be saved by
the principle of reading-in. (it has the following clause in mind:
“provided that the Commission can waive the deposit
requirement in deserving cases”). What is the principle of
“reading-in”? Can it be applied under these circumstances as the
Commission argues? Refer to an example from case law.

Reading in (extensive) - In certain circumstances the court will read

something into a provision to rescue it (add in).
In National Coalition for Gay and Lesbian Equality the court laid down
four principles:
i) the result must be consistent with the Constitution
ii) it must interfere with existing law as little as possible
iii) the courts must define how the legislative meaning should
be modified to comply with the Constitution
iv) the courts must be faithful to the purpose of the
legislation
Yes it will be applied

Under the Voting Act of 1987, Steven was appointed as voting

officer for a period of five years (ending 31 December 2002). The
Voting Act was repealed by the Electoral Act. The Electoral Act
makes no provision for existing officers. What effect does the
Electoral Act have on his position as officer? Explain the
provisions of the Interpretation Act 33 of 1957 which regulate
the position.

Section 11 – the repealed (previous) law remains in force (will be valid)

until the substituted (new) law comes into force (existence).
Effects of repeal
Section 12(2) –
a. When an Act, which declared something illegal is repealed, the
repeal does not have retrospective effect, declaring legal, that
which was illegal before its repeal. Nourse v Van Heerden (illegal
abortion)
b. If the legislation was executed properly before its repeal, it will
remain valid and in force.
c. The right in question must have been acquired in terms of the
repealed legislation before its repeal.
d. The repeal will not affect a conviction in respect of any offence
committed against a law so repealed. R v Sutherland
e. An investigation under an Act will continue even where the Act
is repealed before its completion. S v Erasmus
Because of section 12(2)(b) the provision will remain valid

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Discuss why the judgment in the following case is important for

the theory and practice of statutory interpretation:
National Coalition for Gay and Lesbian Equality v Minister of
Home Affairs 2000 (2) SA 1 (CC).

It is important because the Constitutional Court laid down the

principles to be considered before 'reading in' is applied. Reading in is
a drastic remedy employed by the court to change legislation in order
to keep it Constitutional. The court 'reads' something into the
legislation to rescue a provision or part of it.
• The results of reading in must be consistent with the values of
the Constitution
• The result must interfere with the existing law as little as
possible
• 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 try to be as faithful as possible to the
legislative scheme within the constraints of the Constitution
• The remedy of reading in should not be granted where this
would result in an unsupportable budgetary intrusion.

Section 12(2)(e) of the Interpretation Act 33 of 1957 provides that

"where a law repeals any other law, then, ... the repeal shall not
affect any investigation, legal proceedings or remedy in respect of
any such right, privilege ...", etcetera. Explain with reference to
Nourse v Van Heerden 1992 2 SACR 198 (W).

Section 12(2) – (as above)

Discuss: Nourse v Van Heerden

Can the common law presumption that the legislature did not
intend to change the law more than necessary be applied to the
interpretation of the Act? Explain the presumption and whether
it is applicable in light of section 13 of the Act.

THE PRESUMPTION THAT LEGISLATION DOES NOT INTEND TO

CHANGE THE EXISTING LAW MORE THAN NECESSARY COMMON
LAW
In Seluka v Suskin and Salkow, it was held that the presumption is
rebutted if legislation expressly provides that common law is being
altered. (If the legislature expressly alters the common law, the
presumption does not apply.)
LEGISLATION
An attempt should be made to read earlier and subsequent legislation
together and to reconcile them (Rieger). This presumption is still
applicable today because of the reading down clause and section 233.
Legislation – Section 13

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Section 13(1) – if no date is provided, legislation will commence the

date on which it is published in the Government Gazette.
This lays down three options of when legislation can commence:
(a) The date specified in the legislation
(b) The date to be proclaimed
(c) The date published in the Gazette
Section 13(2) – ‘day’ begins immediately at the end of the previous day
(00:00)

DISCUSS the presumption that the legislature does not intend to

change the existing law more than necessary. In your discussion
you must also address the influence of the new Constitutional
order on this presumption.

First, this presumption means that legislation must be interpreted in

a way that is in accordance with existing law in its widest sense. As
far as the common law is concerned, this presumption shows respect
for our common law heritage. This is evident in the principle that was
laid by the courts that legislation must be interpreted in conformity
with the common law and not against it. However, in a number of
cases the courts also emphasised that an express provision in a
statute that the common law (in respect of a particular point) had
been altered, would rebut this presumption.
In respect of legislation, the presumption means that in interpreting
subsequent legislation, it is assumed that the legislature did not
intend to repeal or modify earlier legislation. Any repeal or amendment
must be effected expressly or by necessary implication. An attempt
should be made to reconcile the earlier and the subsequent statute. If
such reconciliation is impossible, it is presumed that the latter of the
two prevails, resulting either in amendment or repeal of the earlier
one.
The influence of the Constitution: the principle of Constitutional
interpretation that the court must interpret legislation in such a way
that it is consistent with the Constitution and section 233 which
requires that legislation must be interpreted in a way that it is not in
conflict with international law, supports this presumption.

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THE THEORETICAL FOUNDATIONS OF STATUTORY

INTERPRETATION

Although there are many theoretical approaches to statutory

interpretation, in South Africa the debate has been between the literal
(textual) approach and the contextual (purposive) approach.

The textual (literal) approach

This approach was given effect to in the past (pre 1994) at a point in
time where there was parliamentary soverncy.
According to this approach the interpreter should concentrate on the
literal meaning of the provision to be interpreted and the initial
process should proceed along the following lines:
1) The primary rule of interpretation: that if the meaning of the
words is clear, it should be put into effect and equated with the
legislatures intention
2) If the so called “plain meaning” of word is ambiguous, vague or
misleading or if the strict literal interpretation would result in
absurd results, then the courts may deviate from the literal
meaning to avoid such absurdity (Venter v R) = Golden rule of
interpretation. Then the courts will turn to secondary aids to
interpretation to find the intention of the legislature (long title,
headings etc.)
3) Should these secondary aids prove insufficient to ascertain the
intention, the courts will have recourse to the tertiary aids =
common law presumptions

There are 4 factors, which lead to the adoption of the textual approach
in England:
1) Misconceptions about the doctrine of separation of powers and
sovereignty of parliament resulted in the acceptance of the idea
that the courts function should be limited to the interpretation
and application of the will of the legislature – will of the
legislature is to be found in the words of the legislation.
2) The role of the court is limited to the analysis of the law as it is
and not as it ought to be.
3) England has a common law tradition in which the courts played
a creative role in regard to common law principles – legislation
was viewed as an expectation to the rule, altering the traditional
common law as little as possible.
4) English legislation was drafted to be as precise and as detailed
as possible for the sake of legal certainty and cover any number
of possible future cases.

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The essence of the textual approach is the following:

• If the meaning of the words are clear, that meaning is deemed to
be what the legislature intended = the intention of the
legislature is derived from the plain meaning of the words
(Farrar’s Estate v CIR (1926))
• The golden rule of textual interpretation is that the court may
deviate from the literal meaning of the statute only if the words
are unclear and would lead to absurdity
• The textual approach is derived from legal positivism – argues
that all law is derived from the state = the command of the state
is the essence of the rules which make up the law
• The textual approach leaves little room for judicial law making –
courts are seen as interpreters of the law
• Union Government v Mack: it was held that the intention of the
legislature should be deduced from the particular words used in
the text = plain meaning of the text in an in textual disguise.
• According to the textual approach the legislature has a specific
intention and the ordinary grammatical meaning of the text is
decisive in determining it (R v Kirk: words before content)
• The plain meaning approach, golden rule or pre-dominance of
words approach was adopted into South African law in De
Villiers

Criticisms of the textual approach (Union Government v Mack)

1) Presumptions and content are ignored: the central role played by
common law presumptions are reduced to a last resort to be
applied only if the text is ambiguous
2) The approach is too narrow: words are regarded as the primary
index of the legislatures intent – this means that other internal
and external aids to interpretation which are applied to establish
contextual meaning are ignored – unless the textual meaning is
ambiguous or unclear, the interpreter will not have recourse to
the wide range of aids to interpretation at his disposal
3) The literal approach is inherently subjective and depends on the
interpreters understanding of the words: since the courts will
deviate from the plain meaning of the text only if it’s unclear –
the intention of the legislature is ultimately dependent on the
courts decision on the clarity of a particular text
4) Very few legislative texts are so clear that only one interpretation is
possible
5) The textual approach leaves little room for judicial law making or
the existence of judicial discretion: the judge is seen as a
mechanical interpreter of the law – impression that once the
legislature has spoken the courts cease to have any law making
function.
Because of the adherence to the doctrine of the separation of
powers the courts may only interpret the law and not make it.

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Only in exceptional circumstances may the courts deviate from

the literal meaning of the legislation to apply a modification of
the text.
It’s the function of the legislature to correct omissions and bad
drafting in legislation.

The idea that a judge may not add or subtract from legislative text is
based on the incorrect misinterpretation of two common law
principles:

1. in terms of the maxim “iudicis est ius dicere sed non dare”: it’s
the function of the court to interpret and not make law

Harris: the court is bound by the clear letter of the law and the rule
means that only the legislature may supplement or change deficiencies
in legislation. This approach was derived from a misunderstanding of
the separation of powers doctrine.
As a result the principle was used in a number of cases to justify the
literal approach to interpretation

2. Casus omissus rule: courts can’t supply an omission in a law, as

it’s the function of the legislature = this is derived from the
principle that the function of the courts is to interpret law and
not make it.

Public Carriers Association v Toll Road Concessionaries (textual

approach)
The court recognised the value of the purposive approach, but restricted
its application to cases where the textual approach failed.
Facts: a portion of the N3 between Johannesburg and Durban was
declared a toll road in terms of section 9(1) of the National Parks Act 54
of 1971. Section 9(3) of the Act provided that a toll road shall not be
declared unless “an alternative roads to the intended toll road, along
which the same destination or destinations may be reached” shall be
available to road users. The alternative road which was provided
overlapped with the toll road for a total distance of 79km, but bypasses
all the toll gates, thereby enabling motorists travelling along it to avoid
paying toll. An association of public road carriers challenged the new toll
road on the grounds that a “proper alternative road” had not been made
available in terms of section 9 (3) of the Act. The association
contended that the words “an alternative road” meant that there had to
be two distinct, entirely separate roads: a toll road and an alternative
road. Underlying this submission was the notion that by “road” was
meant a roadway. Since the use of the so called alternative road
involved travelling 79km along the toll road, it was not an “alternative
road” as required. The toll road operators argued that “alternative road”
meant an “alternative route”. In this sense, two roads (or routes) are
alternative roads, even though parts of them are common in both. The
court began its reasoning by applying the textual approaches to the way

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of solving the dispute. (giving the words their ordinary grammatical

meaning, unless to do so would lead to an absurdity). The words “an
alternative road” were not linguistically limited to a single ordinary
grammatical meaning. The phrase could mean either “a different
roadway” or “a different route”.

Because both interpretations were linguistically feasible, the court

turned to the so called secondary and tertiary rules of interpretation.
However, it found that there were no other recognised internal or
external aids to interpretation nor any presumption that could help
resolve the ambiguity. The court declared that it should adopt the
interpretation which best served that purpose. The court held that an
“alternative road” meant “an alternative route” and not “an alternative
roadway”. It was not necessary to achieve the object of providing a
wholly separate road. All that was required was a route that bypassed
the toll gates. It followed that the declaration of the relevant portion of
the N3 as a toll road was valid.

In approving the textual approach, the court in Swanepoel v

Johannesburg City Council (1994) held that the rules of interpretation
are intended as aids in resolving any doubts as to the legislature’s
intention. Where the intention is clear – assistance of these rules need
not be sought.

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The contextual (purposive) approach:

Traditional Roman Dutch rules of statutory interpretation were based

on a purposive orientated approach, but after the British occupation
of the Cape the English rules of interpretation started to play an
increasing role.

Purpose orientated approach: this approach applied mainly post 1994

– although penetration and consideration of this approach can be seen
in cases from as early as the 1950’s. This approach focuses on
Constitutional supremacy and the purpose of the legislation.

Purpose orientated – in terms of this approach the purpose of the

legislation is a prevailing factor in interpretation – context of the
legislation as well as social and political policy directives are taken into
account to establish the purpose of the legislation

Objective intention – intention must be determined objectively –

purpose or object of the legislation

Inherent law making discretion: the role of the courts is flexible and
isn’t limited to a mere textual analysis and mechanical application of
an inherent law making discretion during statutory interpretation.
The courts may modify the initial meaning of the text to harmonies it
with the purpose of the legislation.
BUT this discretion is qualified by the logical prerequisite that
modification of the meaning of the text is possible only if and when
the scope and purpose of the legislation is absolutely clear and also
supports such modification.
Such a law making function of the judiciary isn’t an infringement of
the legislature legislative function but merely a logical extension of the
powers of the courts during the interpretation and application of the
relevant legislation in practical instances.

So-called mischief rule is the basis of contextual interpretation: it

includes the application of external aids: the law prior to the problem
in question, defects in the law, mischief not provided for, new
remedies and reasons for such remedied

Objective purpose orientated contextual approach provides a balance:

it takes into account both the grammatical interpretation of the
textual words and the overall contextual meaning

The position in South Africa before 1994

Before the interim Constitution interpretation in SA was in a gradual
state of transition from the rigid literal approach to a more flexible
contextual approach.

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The first effort to move beyond the plain grammatical approach to a

wider contextual approach was undertaken in Jaga v Donges which
held that all interpretive aids must be taken into account to establish the
purpose and intention of the legislature:

These include the following (guidelines for IOS):

a) Right from the outset, the interpreter may take the wider
context of provision into consideration with the legislative text in
question.
b) Irrespective of how clear or unambiguous the grammatical
meaning of legislative text may seem to be, the relevant
contextual factors must be taken into account
c) Sometimes this wider context may even be more important than
the actual grammatical meaning of the text
d) Once the meaning of the text and context is determined, it must
be applied, irrespective of whether the interpreter is of the
opinion that the legislature intended something else.

Facts of Jaga v Donges (contextual approach):

In this case two Indian men were convicted of illegally dealing in
unwrought gold and sentenced as: “each fined £50 or three months
imprisonment with bard labour and a further three months suspended
for three years on condition the accused are not convicted of a similar
offence.” Section 22 of the 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 two men argued that the Minister had
acted unlawfully as neither of them had been “sentenced to
imprisonment” within the meaning of section 22. The question was
whether the phrase “sentenced to imprisonment” included a suspended
sentence of imprisonment.”

The two men argued that the actual meaning of imprisonment meant
actual imprisonment. Relying on the textual approach, the Court
held that the words “sentenced to imprisonment” meant that the
sentence imposed on the offender contained a period of imprisonment
(suspended or not) as an element.

The warrants were thus legally issued. In the minority judgment by

Schreiner, a different conclusion was reached. He expressed the
contextual approach. He adopted this version: “that one may from the
beginning consider the context and the language to be interpreted
together.”

The text and the context must be balanced. Scheiner held that even the
textual approach should have led to a different approach from that
adopted by the majority. The ordinary meaning of the expression
“sentenced to imprisonment” is ambiguous since it could mean “being

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physically removed to prison” or “being sentenced where the sentence

includes a period of imprisonment even if that imprisonment is
suspended.” Because of his ambiguity, the secondary rules must be
applied. Since there were no secondary rules which could resolve the
choice between the two meanings, the tertiary rules had to be applied. It
is worthwhile to reflect on the implications of Schreiner’s critique of the
way in which the majority applied the textual approach. It ties in closely
with some of the criticisms levelled against the textual approached.

All intra and extra textual factors that have a bearing on the statutes
purpose must be taken into consideration
Unlike the textual approach there is no primary, secondary or tertiary
hierarchy of the most important aids
The plain grammatical meaning of legislation is the beginning of the
process – in S v Zuma the importance of the words in Constitutional
interpretation was stressed.

Mjuqu v Johannesburg City Council can almost be regarded as a

model of the contextual approach, since the judge utilized virtually the
entire spectrum of available aids and surrounding circumstances to
determine the purpose and scope of the legislation.

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Influence of the Constitution

The Constitution turned statutory interpretation on its head. Now the

supreme Constitution is the fundamental law of the land. It’s the
ultimate yardstick against which everything is viewed.
In addition the Constitution is a value-laden document, which meant
that the so-called plain grammatical meaning of the text couldn’t be
the prevailing factor anymore

The supremacy clause: Section 2

The Constitution is the supreme law of the Republic, law or conduct

inconsistent with it is invalid and the obligations purposed by it must
be fulfilled.

In S v Makwanyane the judge stated: 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, democratic society. To this end, common values of human
rights protection the world over and foreign precedent may be
instructive.

The Republic of South Africa

The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms
b) Non-racialism and non-sexism
c) Supremacy of the Constitution and rule of law
d) Universal adult suffrage, a national voters roll, regular elections
and a multi-party system of democratic government

The influence of Section 39 on the Constitution

Section 39 (interpretation clause) has a direct influence on

interpretation.
Section 39 (2) stated that during the interpretation of legislation and
the application and development of customary and common law the
court had to take into account the spirit, aim and purport of the
fundamental rights in the Constitution.
This meant that the interpreter had to consult factors outside
legislation before the legislative text was considered.

Section 39(1): When interpreting a text, the court must look at

international law and may consider foreign law.
(2): When interpreting any legislation and developing
common law, the court must promote the spirit and
the objects of the Bill of Rights.

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

Tourism, the court said that you should first look at the Constitution
and interpret the text purposively in the light of the Constitution.

Facts of Bato Star Fishing

This case concerned the allocation of quotas in the fishing industry (the
amount of fish allowed to be caught). Section 18(5) of the Marine Living
Resources Act deals with the quotas. It states that the Minister may
make allocations that have “particular regard to the need to permit new
entrants, particular those from previously disadvantaged sector of
society”.

Bato Star Co was allocated a quota of fish for the year but
complained that it was too small. The question was whether the Minister
did have regard to the objective to bring about equity in the fishing
industry when the allocations were made.

The court answered by asking what the ordinary meaning of the phrase
was. It is clear that “to have regard to” meant more than “to take into
consideration” or “to take into account” or “not to overlook”.
The court looked at the legislation requiring the Minister to “have regard
to” and held that the quotas were validly allocated.

On appeal to the Constitutional Court, Bato Star claimed that the phrase
“have regard to” was interpreted incorrectly and the Constitutional Court
agreed.

In the judgment, the judge expressed concern about the textual method,
being that the ordinary meaning of the phrase “have regard to” was to
take into account, but insisted that it’s no longer the ordinary meaning of
the words but the purpose of the legislation and the values of the
Constitution that have to be applied.

The Question: was whether applying the textual approach, by

interpreting the words of the text was Constitutional?
The finding: the purpose of the legislation and the values of the
Constitution must be applied and no longer the ordinary meaning of
the words. (contextual approach)

The requirement that legislation had to be interpreted in light of the

spirit and purport of the fundamental rights, introduced another set of
extra textual factors.
Section 39 stated that during the interpretation of fundamental rights
the court had to promote the values underlying an open and
democratic society based on freedom and equality.
The court had to take into account international human rights and
could refer to comparable foreign law.

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Section 233:
When interpreting any legislation, a court must prefer any reasonable
interpretation that is consistent with international law over any
alternative interpretation that is inconsistent with international law.

In Hyundai Motor Distributors (Pty) Ltd v Smit the judge explained the
Constitutional foundation of this ‘new’ interpretation methodology as:
Section 39(2) means that all statutes must be interpreted through a
prism of the Bill of Rights. All law-making authority must be exercised
in accordance with the Constitution. It 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 of governance.

The interpretation clause is not merely an interpretative directive, but

a force that informs all legal institutions and decisions with the new
power of Constitutional values. (Holomisa v Argus Newspapers Ltd)

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Questions

During the dispute with the APD the Commission refers to Marais
v Election Officer (1934) in which the court held that the ‘golden
rule’ of statutory interpretation requires that all election
requirements should be literally applied. The magistrate wants to
know from you whether the cited case is still relevant in light of
section 39(2) of the Constitution. Please explain:
what are the most important points of critique are against the
“golden rule”

The most important criticisms were laid down in Mack as:

1) Common law presumptions are used as a last resort
2) The narrow approach (words are given their ordinary meaning)
was regarded as the primary index
3) Internal and External aids were ignored
4) The intention of the legislature is dependent on how clear the
language used in the text is to the particular court
5) Few texts are so clear that only one interpretation is possible

What effect section 39(2) has on the interpretation of statutes

(refer also to the facts, the legal question and the ratio of the
Bato Star case)

Write on the contextual approach and include the following:

The influence of the Constitution
Section 2: The Constitution is the supreme law of the land
(Makwanyane) – Supremacy clause
Section 39(1): When interpreting a text, the court must look at
international law and may consider foreign law.
(2): When interpreting any legislation and developing
common law, the court must promote the spirit and
the objects of the Bill of Rights.
In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism, the court said that you should first look at the Constitution
and interpret the text purposively in the light of the Constitution.

Section 233: When interpreting any legislation, a court must prefer

any reasonable interpretation that is consistent with international law
over any alternative interpretation that is inconsistent with
international law.
Then discuss the Facts of Bato Star Fishing

Explain why the judgement in Jaga v Donges 1950 (4) SA 653 (A),
which was delivered at the height of apartheid, remains
important for the interpretation of statutes after the democratic
transformation. In your answer you must (i) refer to the facts of
the case; (ii) set out the approach followed by the majority of the
court; (iii) set out the approach followed by the minority of the

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court; and (iv) discuss the Bato Star case in which the Jaga
judgment was used to clarify the implications of section 39(2) of
the Constitution.

Write on the contextual approach and include the facts of Jaga v

Donges: (contextual approach)

The literal approach was popular in the legal systems influenced

by English law. List four factors that led to the adoption of the
textual approach in England as well as criticism against the text-
based literal approach to statutory interpretation.

The four factors that led to the adoption of the textual approach in
England are:
1. The misconceptions about the doctrine of separation of
powers
2. The role of the courts was to look at the law as it is and not
as it ought to be
3. Change the common law as little as possible
4. The law was so precise that there was no need to look at

In Union Government v Mack the textual approach was critised as

follows:
1. Common law presumptions are used as a last resort
2. The narrow approach (words are given their ordinary
meaning) was regarded as the primary index
3. Internal and External aids were ignored
4. The intention of the legislature is dependent on how clear the
language used in the text is to the particular court
5. Few texts are so clear that only one interpretation is possible

Discuss why the judgement in each of the following cases is

important for the theory and practice of statutory interpretation:
Public Carriers Association v Toll Road Concessionaries (Pty) Ltd
1990 A 925 (A)

Write on the textual approach and include the facts of Public Carriers
Association v Toll Road Concessionaries

Discuss the Constitutional Court's application of section 39(2) of

the Constitution to statutory interpretation. Refer to case law and
the view of academic writer

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.
Botha argues that the most authoritative statement of the
Constitutional Court is found in the Bato Star case. The case

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concerned the allocation of fishing quotas. One of the objectives of

the Marine Living Resources Act which governs the allocation is to
achieve sustainable development and the need to restructure the
fishing industry in order to achieve equity.
Ngcobo J, in a concurring minority judgment points out that all
interpretation should start with the Constitution. An interpretation
must, where possible, advance an identifiable value enshrined in the
Bill of Rights, and the statute must be capable of such interpretation.
The statute must be interpreted purposively to promote the spirit,
purport and objects of the Bill of Rights and have regard to the
context in which words occur.
In Hyundai Motors Langa DP (as he then was) held that section 39(2)
of the Constitution meant that all legislation must be interpreted
'through the prism of the Bill of Rights'. The Constitution was located
in a history and as such interpretation must recognise the context in
which we find ourselves and the goals of a society based on
democracy, social justice and fundamental human rights.

Write a note on the way in which the textual and contextual

approaches to statutory interpretation have been applied in our
law. Refer to case law and the viewpoint of academic writers.

The point of departure for the textual approach is that if the meaning
of the words is clear, it should be put into effect and equated with the
intention of the legislature (Hawabu). Only if the plain meaning is
ambiguous or unclear or a strict literal interpretation would lead to
absurd results may the court deviate from the literal meaning to
avoid this (Venter). Then the court may turn to the secondary and
thereafter tertiary aids. This is known as the 'golden rule' of
interpretation. In Public Carriers the court reiterated this approach by
saying that the literal interpretation was firmly entrenched in our law
and the court did not seek to challenge it. This was also the approach
in Swanepoel (incidently also the approach of Nicholson J in the Zuma
application).

The contextual approach on the other hand regards the legislative

activity as a purposive activity. The object of interpretation is to
establish the purpose of the legislation. The context, including social
and political factors, is also taken into account. The mischief rule is
regarded as the forerunner to the approach. This approach provides a
balance between grammatical and overall contextual meaning.
Flexibilities and peculiarities of language and all the internal and
external factors are accommodated in the continuing timeframe of the
operation of the legislation.
In the minority judgment of Jaga v Donges guidelines were identified:
• The interpreter may take the wider context of the legislation into
consideration right from the start;
• The relevant contextual factors must be taken into account
irrespective of the clarity or ambiguity of the text;

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• The wider context may sometimes be more important than the

legislative text;
• When the meaning and context has been determined, it must
be applied irrespective of the interpreter's opinion of the
legislative intention.
Mjuqu can be regarded as a model of the contextual approach. The
contextual approach was also followed by the Appeal court in UCT v
Cape Bar Council.
The court may modify/adapt the initial meaning of the text to
harmonise it with the purpose of the legislation. The role of the courts
is much more flexible and not limited to textual analysis and
mechanical application. The judiciary has inherent law-making
discretion, qualified by the prerequisite that such modification is
possible and admissible only when the scope and purpose of the
legislation are absolutely clear and supports the modification.

Write an essay of between four and five pages in which you

discuss whether the judgment in Jaga v Donges 1950 (4) SA 653
(A), which was delivered in the height of apartheid, remains
important for the interpretation of statutes after the democratic
transformation.

Special instructions:
a) Make use of headings and include at least the following: (1)
Introduction; (2) The facts of the Jaga case; (3) the
dominant interpretive approach before 1994 as followed by
the majority in Jaga; (4) the alternative interpretive
approach followed by the minority in Jaga; (5) Section 39(2)
of the Constitution and new interpretive approach followed
in the Bato Star case; (6) Critical evaluation and conclusion.
b) Make use of the model introduction supplied below to get
your essay started.

Model introduction
IS THE JUDGMENT IN JAGA V DONGES 1950 (4) SA 653 (A) STILL
IMPORTANT FOR THE INTERPRETATION OF STATUTES AFTER THE
DEMOCRATIC TRANSFORMATION?
1. Introduction
In its Bato Star judgment, the Constitutional Court made reference
to the interpretive approach followed in Jaga v Donges, a nortorius
case from 1950’s. In this essay, I argue that the recent comments
by the Constitutional Court about the case clearly show that the
Jaga judgment (is still / is no longer) relevant to the interpretation
of statutes after the democratic transformation
[choose and defend one option]
(you must copy the given introduction and make use of the
headings given by Unisa in your essay)
2. The facts of Jaga case
As above

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3. The dominant interpretive approach before 1994 as followed by the

majority in Jaga
Discuss the textual approach – as above
4. The alternative interpretive approach followed by the minority in
Jaga
Discuss the contextual approach – as above
5. Section 39(2) of the Constitution and new interpretive approach
followed in the Bato Star case
Discuss the Constitutional sections as well as Bato Star – as above
6. Critical evaluation and conclusion.
Conclude your answer

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THE INITIAL PHASE – BASIC PRINCIPLES

When interpreting a statute there are 3 general principles, which must

be kept in mind:

1. The supreme Constitution and the Bill of Rights

2. The most important principle of interpretation is to determine
and apply the purpose of the legislation in light of the Bill of
Rights
3. The legislative text is studied to determine the initial meaning
of the text, while keeping presumptions in mind and the
interpreter must at the same time strive to strike a balance
between the text and the context of the legislation

Purpose of the legislation

The most important rule of interpretation is to establish the purpose
of the legislation and give effect to it = but case law refers to the
intention of legislation.
Intention of legislature originated in the principle of sovereignty of
parliament – parliament was the supreme legislature in the Republic
and as result of its supremacy, legislation had to reflect its underlying
intention.

Intention denotes a subjective state of mind, an individual formation

of will directed to a specific result such a subjective state of mind is
inconceivable when it comes to members of the legislative body.

Criticisms (reasons why we don’t use the intention of the legislature)

a) The legislature has a large number of people who take part in
the legislative process
b) Some members of the body usually oppose the legislation for
some reason = legislation is the intention of the majority of the
legislature only
c) Some members will support legislation for the sake of party
unity although they may personally oppose the bill
d) Not all parliamentarians can be expected to understand
technical legislation
e) The bill before parliament isn’t drafted by parliamentarians
themselves but by draftsman acting on the advice of
bureaucrats from state departments
f) Some members of the legislative body may be absent when
voting on a bill

Author Cowen points out important distinctions with regard to

the intention of the legislature:
• It is important to distinguish between the intention of the
legislation and the reasons why the members of the legislative
body voted for the measures

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• The aim and purpose of the legislation should be distinguished

from the intention of the legislature in a psychological sense
• It must be understood that the purpose of the legislation can’t be
found in mere guesswork and made to suit a particular
interpretation: it should be possible to determine the purpose by
objective means

Modern approach
The intention of the legislature is an ambiguous concept in South
African law – used in the narrow sense (as disguise for the plain
meaning approach) or in the broad sense (imply contextual approach)

Cowen emphasizes that the interpretation must be reconcilable with

the purpose of the legislation, even when the words of a particular
measure may seem to have only one unambiguous meaning.

It must be emphasized that this principle of statutory interpretation is

how to ascertain and apply the purpose of the legislation in light of
the Bill.
Everything that has been said about the aim, purpose, scope and
intention must now be assessed and qualified in light of the
Constitution.

The initial meaning of the text

The principles under the concept “ordinary meaning of the text” are
merely language rules; they are general principles, which come into
play when the legislative text is read.

In the past: they were discussed as separate primary rules but they
will be dealt with as a group of rules falling under the initial meaning
of the text – the literal rule no longer has a place in interpretation.

The text is still read for its ordinary meaning but the statute as a
whole and its context play an equally important role.

Initial meaning:
The interpretation process begins with reading the legislation
concerned – the ordinary meaning must be attached to the words
(Mack).

Volschenk: the court decided that the most important rule of

interpretation was to give words their ordinary literal meaning

The principle that the ordinary meaning should be attached to words

of the legislation is only the starting point in the interpretation
process.
The context of the legislation, including all factors both inside and
outside the text, which could influence and qualify the initial
meaning, should be taken into account right from the outset.

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Technical terms: words that have a specific meaning in that field =

look at technical meaning

Meaning assigned to every word:

Words must be understood according to their ordinary meaning.
Legislation should be interpreted in such a way that no word or
sentence is regarded as redundant.
But sometimes it’s impossible to assign a meaning to every word in a
statute (unnecessary repetition) – provisions are often added as a
result of excessive caution.
Overlapping and repetition may occur

Somersvine: the court stated clearly that the principle that a meaning
should be assigned to every word isn’t absolute.
The purpose of the legislation should be the deciding factor in
determining if a word is superfluous or not

Steyn points out that if superfluous words help to ascertain the

meaning of other words, they are not redundant, and the provision
should be read as a whole in order to obtain the meaning.

The continuing time frame of legislation:

Words bear their ordinary meaning – Question: in the case of old
legislation, should words be interpreted according to their ordinary
present day meaning or keep the meaning they had when the
legislation was passed?

Cowen: the so-called rule that words should keep their ordinary
meaning is unnecessary

Courts have different views:

Finbro Furnishers: AD decided that unless later legislation explicitly

provides otherwise words in legislation must be construed according to
their meaning on the day on which the bill was passed.
All legislation must however be interpreted to promote the spirit and
scope of the bill

Swissborough Diamond mines: held that the intention of the legislature

must be determined in accordance with the meaning of the provision at
the time when it was enacted.

Golden China TV Game Centre: held that the general scheme 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.

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Nyamkazi: the judge stated that the supreme Constitution must be

interpreted in context and setting existing at the time when the case is
heard and not when the legislation was passed.

No additions or subtractions
The basic rule of interpretation that there may be no additions or
subtractions from words used in legislation.
But this is only a basic 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 a so-called
primary rule.

Greenfields v Willenburg: the court should be careful not to extend the

meaning of the legislation beyond that of the words used.
The courts should give effect to what the legislations says and not try to
cover eventualities (R v Kirk)

The fondness of the literal rule is still evident.

For all practical purposes it’s sufficient to know that the courts may
not supply omissions at will. If, however the purpose of the legislation
is clear, the court as the last link in the legislative process, should
ensure that the process reaches a just and meaningful conclusion by
supplying an omission.

Supporters of the traditional method of interpretation accuse

contextualists from indulging in free-floating methods of
interpretation, which ignore the text of the legislation.

There must be a balance between the text and the context; this
doesn't mean that the text can be ignored.

Balance between text and context

Courts have long held the view that if the text of legislation is clear,
effect should be given to it; the broader context of the legislation was
taken into account only if the language of the legislation was
ambiguous.

Jaga v Donges: the judge rejected this narrow view and stated that the
interpreter could examine the broader context even when the text was
clear. Legislation can’t be considered properly if the text and context are
separated.
The meaning of the words of the text should be weighed up against the
broader context of legislation.
From the outset the purpose of legislation, the statute as a whole and the
surrounding circumstances should all be taken into account with the
words of the provision.

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Stellenbosch Farmers Wineries: the section of an act which requires

interpretation should be read on the one hand to the meaning which
permitted grammatical usages assigned to every word used in the
section and to contextual aspects which include the consideration of the
language of the rest of the statute, its apparent scope and purpose.

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THE PRESUMPTION THAT THE LEGISLATION DOESN’T CONTAIN

FUTILE OR MEANINGLESS PROVISIONS:

Unless the contrary is clear, it’s presumed that the legislature doesn’t
intend legislation to be futile.
This presumption forms the crux and basis of the most important
principle of interpretation = the courts have to determine the purpose
of the legislation and give effect to it.

The foundation of this presumption is an acknowledgement that the

legislation has a functional purpose and object.
The courts prior to 1994 made every attempt, using this common law
presumption to determine the purpose and effect of legislation.

Ex Parte Minister of justice: In Re R v Jacobson and Levy: the court

found that if the intention of the legislature is clear, the purpose of the
legislation shouldn’t be defeated merely because of vague and obscure
language. The court must attach the meaning to the words, which will
promote the aim of the provision.

The Mischief Rule was applied in R v Ristow to determine the purpose

of the legislation that had to be promoted.

In Mayham: the court held that useless legislation should be avoided

and that an attempt should be made to promote the efficiency of a
provision.

AD held in SA Transport services v Olga: if a provision is capable of 2

meanings, the meaning, which is more consistent with the purpose of
the legislation, should be accepted.

Example of the application of the presumption: R v Forlee: F was

found guilty of contravening Act 4 by selling opium – on appeal his
lawyer argue that F hadn’t committed an offence since the act in
question prescribed no punishment.
The court relied on the presumption against futility, finding that a
specific offence had been created by the legislation. The absence of a
penal clause doesn’t render the act ineffective since the court has a
discretion to impose a suitable form of punishment as it deems fit – this
decision received widespread criticism because it was in conflict with the
rule = where there is no penalty there can be no crime (nullum crimen
sine lege).
It was argued that this rule was of greater fundamental important and
should outweigh the fundamental principle.

R v Zinn: the court approved the Forlee decision but added that the
courts penal jurisdiction may be excluded not only by the rest of the act
but also by other considerations.

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The presumption also applies to substantive legislation – here

preference is given to an interpretation which won’t leave the
subordinate legislation ultra vires and invalid but rather intra vires
and valid.
This rule applies only where two interpretations of a provision is
possible.

The courts should strive to interpret legislation in such a way that

evasion of its provisions is prevented (Dadoo)

The influence of the new Constitution

The presumption still exists.
Section 35 (2) and Section 232 (interim reading down clauses)
provided that if legislation was unconstitutional on face value
(because it was in conflict with the Constitution) and the legislation
was reasonably capable of a more restricted interpretation which
would be Constitutional and valid, such an interpretation should be
followed.
The principle that the courts should as far as possible try to keep
legislation Constitutional is a well-known principle of Constitutional
interpretation.

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Questions

Discuss the presumption that legislation does not oust or restrict

the jurisdiction of the courts. In your answer you must refer to
case law and explain the effect of the Constitution on this
presumption.

The presumption that the jurisdiction of the courts isn’t restricted or

ousted by legislation

Unless expressly stated or necessarily implied in the legislation, it’s

presumed that the legislature doesn’t wish to exclude or restrict the
jurisdiction of the courts.
Reasoning: the court is the final arbitrator in every dispute between
the citizen and the state
Sometimes legislation gives the power to make certain decisions to
certain people (immigration officer) or bodies (licensing board)
Whether courts were competent to review such decisions depended on
the enabling legislation.
The High Courts jurisdiction to review administrative decisions was
often ousted by secondary legislation during various states of
emergency in the 80’s but under the supreme Constitution this isn’t
possible anymore.
Even if such legislation expressly excluded the courts jurisdiction,
their power to review such a decision wasn’t totally excluded.
The High Court always has an inherent common law jurisdiction to
review such decisions.
If legislation expressly excludes jurisdiction, the power to review is not
totally excluded because the high court has inherent common law
jurisdiction to review such decisions. This was applied in Soweto
Council.

The influence of the new Constitution

The principle underlying the common law presumption that the
jurisdiction of the courts isn’t ousted by legislation is now also
entrenched as a fundamental right in the Constitution

Section 34: everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair, public hearing
before a court. Read with Section 33 and Section 35 (3) Accused has
the right to a fair trial – means the legislature can no longer limit the
jurisdiction of the courts at will with ouster clauses.

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THE RESEARCH PHASE – ASCERTAINING THE PURPOSE OF THE

LEGISLATION

Introduction:
Fundamental principles in statutory interpretation are that the
purpose of the legislation must be determined in light of the spirit,
purpose and objects of the Bill.
The legislative purpose must be established: an interpreter must use a
wide range of aids to ascertain the purpose of the legislation.

Du Plessis: refers to such a research process as contextualisation.

The aids fall into 2 categories:
1. Intra-textual (internal) aids: legislation and all its parts
2. Extra-textual (external) aids: all those factors outside the
legislative text.

Difference between the textual and contextual approaches

There is a difference of opinion between textual and contextual
schools with regard to when some of these aids to interpretation may
be used.

Textualists: will refer to these aids only when the relevant words are
ambiguous and unclear
Contextualists: hold the view that all internal and external factors that
may influence the meaning of a provision must be taken into account
right from the outset.

Intra-textual Aids:

1. Legislative text in another official language:

Before the ‘96 Constitution:

Before legislation in SA was drafted in 2 official languages and the text
in the other language was used to clarify obscurities.
The ‘93 Constitution extended the official languages to 11

Original legislation: the signing of the draft legislation is part of the

prescribed procedure during the passing of original legislation –
legislative texts are signed alternatively in the different language in
which they were drafted and the signed text was enrolled for record at
the AD.
In the case of an irreconcilable conflict between the various texts the
signed one prevails.

The signed version of the text doesn’t carry more weight simply
because it was signed.
• The signed version is conclusive only when conflict arises
between the versions and then only when there is an

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irreconcilable discrepancy between them – the signed version is

only used as a last resort to avoid a stalemate.
• If one version of the text is wider than the other, the ‘common-
denominator’ rule is followed.
• If there is no conflict, the versions complement each other and
must be read together.
• Even the unsigned version of the legislative text may be used to
determine the intention of the legislature.
• With regards to amendment acts (which are also signed
alternatively) the court in R v Silinga suggested that the
amendment act will be regarded as part of the original statute.
The version of the statute signed originally will prevail.

Criticisms:

Du Plessis: points out that all legislative texts should be read together
right from the outset as they all form part of the structural wholeness
of the same legislative text.
Statutory interpretation in South Africa, has the benefit of having two
or more version of the same legislative text available for comparison.
The arbitrary manner of dispute resolution (i.e. the signed version
automatically prevails) is merely a confirmation of the textual
approach, because the purpose of the legislation is ignored if there is
an irreconcilable conflict between the two versions of the text.

Devenish: in accordance with the plain meaning tradition, the text

under consideration must 1st be interpreted according to the
recognized principles of statutory interpretation and that other texts
must be referred to only if an ambiguity can’t be resolved – it could be
said that the signed version reflects the purpose of the provision.
In following the signed version blindly the purpose of the legislation
will be defeated by the court.

It may also happen that the signed text is unconstitutional while an

unsigned text is Constitutional.
The contextual approach holds the view that all intra and extra
textual factors must be used to ascertain the legislative purpose.

The ‘96 Constitution:

According to the Constitution the texts of all legislation, which have to
be signed by the President/ provincial premier, must be entrusted to
the Constitutional Court for safekeeping. The signed text will be
conclusive proof of the provisions of that legislation.

Section 240: provides that the English text will prevail in the event of
any inconsistency between the texts.
Du Plessis: the Constitutional Court court referred to the existing legal
position regarding conflicting versions of the same text.

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In light of the interpretation clauses (Section 39 and Section 233), as

well as the principle that legislation should as far as possible be
interpreted to render it Constitutional = solution: in the case of an
irreconcilable conflict between the versions of the same legislative text,
the text which best reflects the spirit and the purpose of the Bill must
prevail.

2. The Preamble:
The preamble usually contains a program of action for declaration of
intent with regard to the broad principles contained in a particular
statute.
In two cases the courts using the textual approach to interpretation
decided that the preamble may be referred to only if the provisions of
the act were ambiguous (Green and Davidson - textual).

In Colonial Treasure v Rand Water Board: the court referred to the

preamble in order to ascertain the intention of the legislature (contextual
approach) = this was later followed in Jaga v Donges.

Khala – followed the contextual approach.

3. The Long Title

This provides a short description of the subject matter of the
legislation – it forms part of the statute considered by legislation
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. (Bhyat)

The courts are entitled to refer to the long title of a statute to establish
the purpose of the legislation.

S v Nel: it was held that the long title could be used only when the
wording of a particular provision is vague or ambiguous.
The wording of the long title can never alter the clear prescriptions of the
relevant section.

Decision such as these merely reinforces the narrow literal approach

to interpretation, because the long title and other aids should be used
from the outset to determine the purpose of the legislation whether
the meaning of the text is clear or not.

4. Definition clause:
Most statutes contain a definition clause: explanatory list in terms of
which certain words used in the legislation are defined.
The definition clause is important because terms defined in the clause
acquire a specialized technical meaning which is conclusive, unless
the contexts indicates that it has another meaning.
The court follows the ordinary meaning. (Brown)

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The court will always examine the meaning given to a word in the
definition clause to see whether it’s in accordance with the purpose of
the legislation. (Kanhym)

5. Headings to chapters and sections

These are introductions to sections or chapters.
Within the framework of the contextual approach all factors, including
headings should be considered to determine the purpose of the
legislation.
Past: courts held the textual view that headings may be used by the
court to establish the purpose of the legislation only when the rest of
the provision isn’t clear. (Chotabhai)

Turffontein Estates: the court held that the value to be attached to

headings would depend on the circumstances of each case.

6. Marginal notes
Before marginal notes weren’t considered to be part of the legislation
because they aren’t inserted by the legislature but by the draftsmen.

Durban Corp v Estate Whittaker: the court held marginal notes weren’t
used to determine vague provisions.
In Imene: the courts used marginal notes to interpret legislation.

7. Paragraphing and punctuation:

These affect the meaning of the text.
It was held in Bosmans Trustee that punctuation and paragraphing
weren’t used in construing legislation.
Steyn criticized this approach because it’s a grammatical fact that
punctuation and paragraphing can affect the meaning of the text –
this was followed in R v Njiwa.

In Skipper, the court stated that if it was considered during the

passing of legislation, then it must be considered during
interpretation.

8. Schedules:
They serve to shorten and simplify the content matter of sections in
the legislation – their value in interpretation will depend on the nature
of the schedule, its relation to the rest of the legislation and the
language in which its referred to in the legislation itself.

General rule: schedules, which amplify sections of an Act, should have

the same force of law as the content of a section I legislation.
In the case of conflict between the schedule and the section of the
legislation, the section prevails

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9. Purpose of the Act

This provides a more detailed description than the long title.

10. Footnotes
Footnotes and endnotes are used to facilitate confusing and difficult
cross-referencing. They should be used like any other intra-textual aid
to statutory interpretation.

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Extra-textual aids

1. International human rights law (the Constitution)

When the court has to interpret a Bill in the Constitution it must
consider international law (especially those applicable to the
protection of fundamental rights) and may consider foreign law.

International human rights law is a set of universal rules or norms

dealing with the protection of fundamental human rights.
Botha: discusses the sources of international human rights law:
a) A large number of international treaties dealing with human
rights:
• Charter of the UN
• Universal declaration on human rights
• European convention for protection of human rights
and fundamental freedoms
• African charter on human rights and Peoples rights
b) Decisions by foreign courts with regard to comparable Bills of
fundamental rights in their own countries – it must be
pointed out that foreign judicial decisions and principles of
international human rights law should be applied with due
regard to the South African values, culture, settings and
circumstances (S v Zuma)
The Constitution is the supreme law of the land and anything
inconsistent with it must be declared invalid to the extent of its
inconsistency.

2. Parliamentary proceedings discussions and debates

Debates about a specific Bill before parliament before it’s been passed,
the debates and reports of various committees which form part of the
legislative process and the reports of commissions of enquiry that gave
rise to legislation, all constitute preceding discussions.

Question: whether the courts may use such discussions in construing

legislation and to what extent, has been subject to such debate.

a) Debates during the legislative process:

Debates in Parliament, debates and reports of various committees,
which form part of the legislative process and reports of commissions
of enquiries all, constitute preceding discussions.
Steyn: debates preceding the acceptance of a Bill are a useful aid in
establishing the intention of the legislature, especially when it’s not
evident from the wording of the legislation = this view hasn’t been
accepted by courts:
In Bok v Allen and Mathiba: the use of preceding discussions was
rejected outright
R v Ristow: courts expressed doubt about the use of discussions

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In More the court refused to use a parliamentary resolution from which

parliaments interpretation of legislative provisions was evident, as an
aid to its interpretation of the provision.
The court held that the resolution by parliament was an executive act
and not a legislative act.
The court was prepared to ascertain the intention of the legislature in a
textual fashion from the wording of the legislation.

b) Commission reports

Hleka: the court left open the question whether reference to commission
reports is permissible.
AD in Harris was prepared to use reports
Hopkinson: the court decided that the prevailing law prevented the use
of a commission report about the Companies Act
Rand Bank v De Jager: the court decided that a report of a commission
of enquiry was an admissible aid in construing the Act
Westinghouse: held 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 the recommendations of the report
and the provisions of the legislation.
S v Nel: the courts held the same view – it would appear that courts are
prepared to consult commission reports only if the provisions of the
legislation are ambiguous.
Dilokong: the courts had to decide whether or not to use the reports of a
member of the standing committee, which drafted the wording on an
export scheme.
The court found the evidence was inadmissible since it merely
represented his own subjective opinion of the deliberations

Criticisms:
Steyn: the reasons given by the courts for not submitting such
material isn’t convincing. The deliberation and reports of the
committees of parliament can be used to ascertain the purpose of the
legislation.
The argument that not all debates in Parliament apply to the purpose
of the legislations isn’t relevant.
Courts are expected to use their discretion in imposing punishment
and in reaching decisions in conflicting evidence.

3. Surrounding circumstances:
Conditions prevailing before and during the adoption of legislation =
content of legislation

a) Mischief Rule:
The historical context of legislation is used to place the provision in
question in its proper perspective – the use of surrounding
circumstances is also known as the mischief rule.

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The mischief rule was laid down in Heydon’s case it poses four
questions that must be answered to establish the meaning of
legislation:
a) What was the legal position before the legislation was adopted?
b) What was the mischief (defect) not provided for by existing
legislation or common law?
c) What remedy/ solution was provided by the legislation to solve
the problem?
d) What was the true reason for the remedy?

This rule was applied in Hleka

Qozeleni: the object of the rule is to examine the circumstances leading

to the measure in question. The approach to interpret the Constitution is
not foreign to the mischief rule.

Santam Insurance v Taylor: in which the court was obliged, on account

of incomprehensible language used in the Compulsory Motor Vehicle
Insurance Act, examine the historical background of the act to ascertain
its purpose

Diepsloots Residents: the court used the background of development

about the dismantling of the apartheid system to interpret legislation

b) Travaux Preparatoires (preparatory works):

This refers to discussions during the drafting of an international
treaty, but can be used with regard to the deliberations of the drafters
of the supreme Constitution.
Section 39 (2): every court has to indulge in some Constitutional
interpretation.

The contextual approach favors the use of relevant factors and

circumstances during the interpretation process.
A supreme Constitution which includes a Bill of fundamental rights
has been described as a ‘living tree’ = it is a dynamic document and
must be interpreted in light of the ever-changing circumstances.

If deliberations of the Constitutional drafters become the deciding

factor during interpretation of such a Constitution, there will be no
development.
Preparatory works of a Constitution can be consulted as a secondary
source but it can’t be a deciding factor.

Du Plessis and Corder: deliberations form part of the historical

interpretation and should be included in surrounding circumstances

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c) Contemporanea expositio:
This is the exposition of legislation, which is given at the time of its
adoption or after.
The marginal notes, punctuation, division into paragraphs and the 1st
application of the legislation may all serve as CE. The implication was
probably given by persons who were involved in the adoption of the
legislation, or shortly afterwards during its first application.

d) Subsecuta observatio:
This is the established use or custom that may originate at any time
after the adoption of legislation and which may be in conflict with
contemporanea expositio.
R v Lloyd: the court declared that the use of a measure by the courts
and other officials over a long period of time was a good indication of it’s
meaning.
Although custom can't dictate a particular interpretation when 2
interpretations are possible, the long-term use of a measure can be a
deciding factor.

e) Earlier legislation:
May serve as a guide for later statutes as long as they deal with the
same subject = practice: presumption that the legislature is aware of
existing law at the time of adoption of the legislation, as well as the
interpretation given to words and expressions in previous legislation.

f) Subsequent legislation:
Same as above = legislation in each case must deal with the same
subject.

Kantor: subsequent statutes may be used as an aid to interpretation in 2

instances:
a) Where the statute was adopted for the express reason of
expounding a [previous statute
b) Where the statute is adopted on the supposition that a previous
statute had a particular meaning – in the latter a case the
subsequent legislation should be used with great circumspection
as an aid, since the danger may arise that it could gain retroactive
force.

g) 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”

This is an African concept and refers to a practical humanist

disposition towards the world and refers to compassion, tolerance and
fairness.
The concept was applied and explained in S v Makwanyane: translates
as humanness = personhood/ morality.

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It envelops the key values of group solidarity, compassion, respect,

human dignity, etc

Ubuntu isn’t expressly mentioned in the ‘96 Constitution, but this

doesn’t mean that it will disappear from South Africa:

• Since it was used in Makwanyane it forms part of precedence

• It lives in numerous references in human dignity in the
Constitution
• It’s an important bridge between communal African traditions
and western traditions, which focuses on the individual and can
be useful as an extra-textual aid to statutory interpretation.
• It was mentioned in our ’93 interim Constitution.

4. Dictionaries and linguistic evidence

a) Dictionaries:
Are more frequently used by the courts to define and demarcate the
meaning of words.
De Beers: the court stated that the interpretation of a word couldn’t be
finally determined by its meaning in the dictionary – it’s only a
guideline.
The dictionary couldn’t prescribe which of several possible meanings
of a particular word should take precedence – the context in which the
word was used should be the decisive factor.

S v Makhubela: A was charged with being behind the wheel of a vehicle

that was being pushed by a number of people on a public road, without
a drivers licence. He was found guilty of driving a vehicle on a public
road without a valid drivers licence.
On review the court decided that the definition of the word ‘drive’ as
found in the Road Traffic Act was inadequate = the court found the word
drive shouldn’t be construed only according to its dictionary meaning,
but should be understood within the context of the Act as a whole.
The legislation meant that a person driving a vehicle by its own
mechanical power should be in possession of a drivers licence =
conviction and sentence was set aside.

b) Linguistic evidence:
AD held that the testimony of language experts weren’t admissible as
an aid in construing legislation.

5. The sources of a provision

The courts sometimes have to interpret a provision of an English
statute that has been incorporated verbatim into SA legislation.
Question: should courts follow the interpretation given to the original
English legislation?

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R v Myburgh and Beukes: the court said that if the language of the
legislation is identical to that of the English legislation, it should be
construed in accordance with the interpretation of English courts.
If the language isn’t the same, the courts have discretion with regard to
the true meaning of the provision.

Criticism:
a) This emulation of English decisions implies that the legislature,
in incorporating English legislation into South African law
replaces South African common law with English common law
b) English decided cases are based on the principles of English
law, which may be foreign to South African laws
c) This approach negates the independent role played by South
African courts in the interpretation process

Strauss: South African courts will use the interpretation of English

courts as a guideline, but will always construe legislation in light of
South African common law.

Influence of the new Constitution:

Section 39 (2): when our common law is developed by any court, the
spirit, purport and object of the Bill must be promoted

The interpretation Act:

Section 1: the provisions of this Act shall apply to the interpretation of
every law in force at the moment of the commencement of this act in
South Africa and to the interpretation of all by-laws, rules, regulations
or orders made under the authority of such a law.

TIME FACTOR

Meaning of a month: Section 2: month: calendar month and not a

lunar month of 28 days.
The application of this definition is ambiguous = the term calendar
month can be construed in two ways:
1. A month as it appears on the calendar
2. A month as its measured for example, in prison terms, for a
certain day of the month to the corresponding day of the next
month

It would be more appropriate to use a calendar month.

Computation of time:

Lots of statutes and Constitutional provisions prescribe time periods

in which/ after which certain actions are to begin/ to be executed,
abandoned or completed.
The failure to discharge the obligation within the certain period may
therefore affect the rights of the parties concerned.

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Section 4 of Interpretation Act: this section provides that a number of

days must be calculated by excluding the 1st day and including the
last day – unless the last day is a Sunday or public holiday =
excluded.
Section 4 only applies when legislation has made no other
arrangement in the legislation concerned

Brown: the purpose of Section 4 is to determine the end and not the
beginning of a particular period.

Where the statutory section is not applicable, you must use the
ordinary civil method (Kleynhans v Yorkshire Insurance)

Common law methods:

1. Computatio Civilis: opposes Section 4 – 1st day of the prescribed
period is included and the last day is excluded
2. Computatio Naturalis: prescribed period = calculated from the
hour of an occurrence to the corresponding hour or minute on
the last day of the period in question
3. Computatio Extraordinaria: both the 1st and last days of the
period concerned are included

In De Beers, a collision took place on the 5 August 1967 and the

summons was delivered on the 5 February 1968. The court applied
the ordinary civil method to calculate the time – the last day was
excluded and the summons should have been delivered on the 4th.

Minister of Police v De Beers:

The cause of action was a car accident involving a police car. In terms of
the Police Act a civil suit brought against the police must be instituted
within 6 months.
The accident took place on 5 August 1967 and the summons was
delivered on the 5 February 1968.
The court applied the ordinary civil method to calculate the time – the
last day was excluded and the summons should have been delivered on
the 4th.
The action was thus refused.

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THE PRESUMPTION THAT GOVERNMENT BODIES AREN’T BOUND

BY THEIR OWN LEGISLATION:

As a General rule the state isn’t bound by its own legislation unless
the legislation provides otherwise or by necessary implication.
Students normally presume that this presumption sanctions
unbridled lawlessness of government agencies BUT this doesn’t create
carte blanche, but rather a principle of effectiveness to ensure that the
state isn’t hampered in its governmental function.

Du Plessis: the presumption is first a functional means to an end of

ensuring that the execution of the function of government isn’t unduly
hampered.

Wiechers: if the state is bound by its own legislation only in

exceptional circumstances, there would be no question of state
liability = the state would always be bound by its own legislation
except in those circumstances where it would be hindered in the
performance of its governmental duties.

S v De Bruin: the A was caught exceeding the speed limit – he was

charged with contravening the fuel regulations and convicted in a
Magistrates Court – on appeal DB claimed that he was a public servant
who, on the day in question, had been running late for an on site
inspection on the states behalf.
If he arrived late this would have been detrimental to the state.
The court found that being bound to the provision in question could have
obstructed state services.
His decision to exceed the speed limit was reasonable and he set aside
the conviction.

In Evans, the court stated that the presumption was not limited to
instances where the state’s prerogatives are involved. It was held that
the state would not be bound in circumstances where:
1. The state would be rendered subject to the authority of its own
officials
2. Where the state would be affected by penal provisions

The question whether the state is bound depends on the particular

legislation and specific circumstances. The following are examples of
the particular application of the presumption:
o The driver of a fire engine may disregard a red traffic light while
fire fighting (Labuschagne)
o An agricultural official who combats stock disease and at times
has to cull stock, is not bound by statutory requirements
regarding haunting permits (Huyser)
o An ambulance has to abide by all rules of the road except in a
state of emergency

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The influence of the new Constitution

The Constitution has done away with this provision. Since S39 (2) the
Constitution stipulates that the rules of common law have to be
developed in light of the fundamental rights in the Constitution, it
submitted that this presumption should no longer apply under the
new Constitutional order.

Section 8 (1) Provides: that government organs at all levels are bound
by the Bill – the Constitution is the supreme law of the republic and
government conduct must be tested against the fundamental rights in
the Bill – it would be illogical if government organs were bound to the
Constitution but at the same time presumed not to be bound by their
own legislation.

The Constitution has reference to openness, accountability,

supremacy of the Constitution, democratic society based on human
dignity, equality and freedom and the state is bound by the
Constitution.

Wiechers: the state should always be bound, except in exceptional

circumstances = proved correct.
State organs should always be bound by their own legislation, unless
a government organ can prove that it would be hampered in the
execution of its duties and functions if it were bound by its own
legislation

It may be possible that fundamental rights are infringed if the state

isn’t bound by its own legislation.
In terms of Section 36: the state will then have to prove that it’s
reasonable and justifiable for it not to be bound by the legislation

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THE PRESUMPTION THAT THE JURISDICTION OF THE COURTS

ISN’T RESTRICTED OR OUSTED BY LEGISLATION

Unless expressly stated or necessarily implied in the legislation, it’s

presumed that the legislature doesn’t wish to exclude or restrict the
jurisdiction of the courts.
Reasoning: the court is the final arbitrator in every dispute between
the citizen and the state.

In Tefu, the court held that if the courts jurisdiction is specifically

excluded then the intention of the legislature is clearly indicated. This
was confirmed in De Wet.

Sometimes legislation gives the power to make certain decisions to

certain people (immigration officer) or bodies (licensing board)
Whether courts were competent to review such decisions depended on
the enabling legislation.

The High Courts jurisdiction to review administrative decisions was

often ousted by secondary legislation during various states of
emergency in the 80’s but under the supreme Constitution this isn’t
possible anymore.
Even if such legislation expressly excluded the courts jurisdiction,
their power to review such a decision wasn’t totally excluded.
The High Court always has an inherent common law jurisdiction to
review such decisions.

If legislation expressly excludes jurisdiction, the power to review is not

totally excluded because the high court has inherent common law
jurisdiction to review such decisions. This was applied in Soweto
Council.

Mathope v Soweto Council:

The Act provided that a civil action between a black person and the
community council shall be heard by a commissioner’s court. The court
referred to the fundamental right to approach an ordinary court and
found that the provision concerned contains nothing that rebuts this
presumption.

The influence of the new Constitution

The principle underlying the common law presumption that the
jurisdiction of the courts isn’t ousted by legislation is now also
entrenched as a fundamental right in the Constitution.

Section 34: everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair, public hearing
before a court.

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Read with Section 33 and Section 35 (3) an accused has the right to a
fair trial – means the legislature can no longer limit the jurisdiction of
the courts at will with ouster clauses.

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Questions

Identify the long title of the Electoral Act and explain if and how
it can be used to interpret other sections of the Electoral Act.

A long title: This is a short description of the subject matter of the

legislation. It helps to ascertain the purpose of the legislation (Bhyat).
The long title in this Act is “To regulate municipal elections; to amend
certain law; and to provide for matters connected therewith”.
Yes it is an intra textual aid and therefore used for interpretation

The English text was signed by the President. Explain the

relevance, if any, of this fact for the interpretation of the
Electoral Act. Refer to the way legislative texts in other official
languages may be used in the interpretive process.

In the past, legislation was drafted in 2 official languages, now it is

drafted in 11. When there is a debate as to which version we apply we
look at whether the piece of legislation is delegated or original
Delegated legislation - When all the versions are signed and a debate
arises, the court must give preference to the one that benefits the
person concerned.
Original legislation - These legislative texts are signed alternatively and
the general rule is if there is conflict in the texts, the court should look
at the signed version.
However, it was held that the signed version should not carry more
weight simply because it is signed. There are different views on this
aspect:
Du Plessis says that you must read them together from the outset,
while
Devenish is of the opinion that the signed version should prevail
Section 240 of the Constitution states that if there is inconsistency in
the text, the English one will prevail.

The APD wants to contest the elections, but they paid their
prescribed deposit in terms of section 14(1) (b) of the Electoral
ACT THREE DAYS AFTER THE DEADLINE. The Commission
refuses to register them as a party for the elections. The
Commission argues that the provisions of section 14(1) (b) are
peremptory. How should the legislative purpose behind the
deposit requirement be defined? Can the Report of the
Presidential Commission, which was responsible for the new
legislation, be submitted as evidence to establish why parties are
expected to pay a deposit? Can the Minister’s response to the
same question during the debate in Parliament be submitted as
evidence?

When considering preceding discussions, all the relevant factors need

to be taken into consideration. With regard to debates, according to

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Bok v Mathiba and Ristow, debates during the legislative process are
not accepted by our courts. With regard to commission reports, the
question whether it is accepted by our courts has had different
responses:
According to the textual approach, these were not accepted by our
courts.
According to the contextual approach, they should be accepted if they
would help to determine the purpose of the legislation.
In Hopkinson and Dilokong commission reports were not accepted.
However, Steyn argues that the reasons given for this were not
convincing. In Randbank Ltd, Nel, Harris and Hleka, commission
reports were accepted by our courts.
We won’t take the debates into consideration but the commission
reports will be considered with regard to interpreting.

Regulations were made under the Act. In terms of these

regulations: “Any marriage officer who inquired into the ground
of an objection to any proposed civil union under section 9(2) of
the Act may not solemnise the civil union within 14 days of
receiving the objection”. Jesse lodged an objection on 2 March
2007. What would the earliest date be that the union may be
solemnised? Explain in detail with reference to section 4 of the
Interpretation Act

The meaning of a month - according to section 2, a ‘month’ means a

calendar month as it appears on the calendar and not a lunar month
of 28 days.
When determining the day on which something is meant to occur in
terms of legislation there were 3 common law positions which has now
been replaced by the statutory method as prescribed in section 4.
Common law methods
1. Ordinary civil method: include the first day and exclude the last
day
2. Natural method: include the first and the last day from and to
the exact time
3. Extraordinary civil method: include both the first and the last
day
Statutory method – Section 4: The first day is excluded and the last day
is included, unless the last day falls on a Sunday or public holiday,
then you go to the next day.
So in our situation one would exclude the 2 March 2007 but include
the 14th day – the 16 March would be the earliest date on which the
union may be solomised.

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List of at least seven internal aids that can be consulted and give
an example of each from the text of the Act (where possible).

Intra textual aids include:

• Long title – “To provide for the solemnisation of civil unions, by
way of either a marriage or civil partnership; the legal
consequences of civil unions; and to provide for matters incidental
thereto”
• Preamble – “WHEREAS section 9 (1) of the Constitution of the
Republic of South Africa, 1996, provides that everyone is equal
before the law and has the right to equal protection and benefit of
the law;....”
• Definitions clause – In this Act unless the context otherwise
indicates – “prescribed” means prescribed by...............
• Paragraph and punctuation – e.g. indenting
• Headings – Solemnisation of civil union. – (1)
• Official language – (English text signed by the State President)
• Marginal notes –

Do you think that the preamble of the Civil Union Act (especially
the last paragraph) was drafted with the application of the classic
“mischief rule” in mind? Motivate your answer with reference to
case law, what the mischief rule entails, and why it is regarded as
a precursor of the purposive approach to statutory interpretation.

This rule was created in the Heydon’s case. Here you use the
historical context of the legislation to place the provision in its proper
place.
The Heydon’s case laid down four questions to establish the meaning
of the legislation. e.g. same –sex unions
1. What was the position before the legislation was adopted? –
weren’t recognised
2. What was the defect not provided for? – infringed your right to
equality, sexual orientation, freedom of choice
3. What remedy was provided by the legislature to solve this
problem? – civil unions
4. What was the true reason for this remedy? To protect your
rights
This was applied in Hleka.
According to the questions laid down in the Heydon’s case, each could
be answered from reading the preamble and therefore the preamble of
the Act was drafted with the application of the ‘mischief rule’ in mind.

Explain the ordinary civil method of the computation of days with

reference to the case law.

The time is computed diem de diem - The first day is included and
the last day excluded. The last day ends at midnight of the previous
day. In Minister van Polisie v De Beer the cause of action was a

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collision between a police vehicle and another car. In terms of the

Police Act at the time, a civil action in terms of the Act must be
instituted within 6 months. The collision took place on 5 August and
action was instituted on 5 February the next year. The court found
that the civil method of calculating time should be used. The last day
should have been excluded and the summons was one day too late.

Do you think the long title and the preamble of the National
Youth Act were drafted with the application of the classic
"mischief rule" in mind? Motivate your answer with reference
to case law, what the mischief rule entails, and why it is regarded
as a precursor of the purposive approach to statutory
interpretation

The mischief rule was laid down in the 16th century by Lord Coke in
Heydon' Case. It is the cornerstone of the contextual approach. Four
questions must be answered:
• What was the legal position before the legislation was adopted?
• What was the mischief/defect not provided for by the existing
legislation?
• What solution/remedy was provided by the legislature to solve
the problem?
• What was the true reason for the remedy?
It is regarded as the precursor of the purposive approach because the
object of the rule is to investigate the circumstances leading to the
measure. This indicates the purpose of the provision.
In Santam Insurance Ltd v Taylor the rule was used to interpret
the incomprehensible language of the legislation. In Qozeleni v
Minister of Law and Order the court found the suggested approach to
the interpretation of the Constitution to be similar to the rule.
The preamble of an Act usually contains a programme of action or a
declaration of intent, while the long title gives a short description of
the subject matter of the legislation. This preamble covers the four
questions asked above and could therefore be said to be drafted with
the mischief rule in mind. Conclusion could be argued either way if
argument logical and sensible.

How may dictionaries be used as an interpretative aid? Refer to

relevant case law.

Dictionaries are used to demarcate the meaning of words. 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 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').

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THE CONCRETIZATION PHASE

This is the correlation of the text and purpose in light of the

Constitution.

What is concretization?
Du Plessis: is the final stage in the interpretation process. The
legislation is realized = the text and the purpose as well as the facts of
a particular situation are brought together to reach a conclusion.

The interpreter moves from the abstract into reality to apply a

particular legislation – after the text has been studied and al the
presumptions, aids and principles to contextualise and determine the
aim and purpose of the legislation employed – the result is applied to
the facts of the case to reach the correct solution.
Concretization takes place – irrespective of which approach is used =
contextualists feel that contextual approach provides more data to the
interpreter with which to exercise a better discretion during the
interpretation and application of legislation.

Du Toit: the essence of successful interpretation lies in the current

realization of the possible meaning of the original legislation.
The meaning of the text is tantamount to its application in a concrete
situation.

The law making function of the courts

Textual (orthodox) approach:

Clear and unambiguous language of the text is equated with the
intention of the legislature. Only if the words seem ambiguous or
inconsistent may the court use secondary and tertiary aids.
The court should interpret the legislation only within the framework of
the words used by the legislature.
Any modifications, corrections or 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, not interpreting it.

Purposive (contextual) approach:

the contextual school claims that the court has a creative law making
function during statutory interpretation – this doesn’t mean that they
take over the powers of the legislature.

Du Plessis: interpretation involves more than reproduction of either

the plain meaning of the language or the intention of the legislature.

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Labuschagne: the courts have a subordinate lawmaking function and

form part of the legislative process in concrete cases, aimed at the
fulfillment of needs in society. The courts are the final link in the
legislative chain and it should be its task to ensure that the legislative
process has a meaningful and just end.

Legislation contained in the document is incomplete and is only a

structure of the statute = only when the courts apply the legislation
does it become a reality and a complete functional statute.

The legislation is situation bound and the process passes through

stages from the generality of the statute to the particularity of the
functional statute.
Legislation isn’t interpreted it’s molded – the purpose of the legislation
is the directing principle throughout the process.
Modification /adoption of the initial meaning of the text involves the
exercise of a creative judicial discretion – this isn’t an arbitrary
expression of personal preferences, but the application of a discretion
within the boundaries of the purpose of the legislation.

Although the legislature has the primary legislative powers, those

powers aren’t exclusive, since the court plays a secondary legislative
role.
The legislature and judiciary are partners in the lawmaking process.

The myth that courts merely interpret the law

Literalists: the courts will usurp the powers of the legislature if and
when the legislation is interpreted creatively – this is based on a
number of false assumptions and contradictions.

Case law refers to a modification of language: it’s not the language of

the legislation that’s modified but the meaning of the legislation,
which is adapted, reconstructed to give effect to the legislative
purpose.
When the courts deal with an omission/ modify the meaning of the
words – the provision isn’t physically modified – it remains as it was
originally promulgated by the legislative body: the meaning of the
legislation is modified only for that specific concrete situation.

The influence of the Constitution:

o Parliamentary sovereignty was replaced by Constitutional
supremacy – during interpretation the court must try to
reconcile the aim and purpose of the legislation with the
provisions of the Constitution.
o Reading down clauses provided that if legislation is on the face
of it unconstitutional, but the legislation is reasonably capable
of a more restricted interpretation which would be
Constitutional and valid = such restricted interpretation must
be followed

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o Matiso: in terms of the Constitution the court bears the

responsibility of giving a specific context to those values and
principles in any given situation = judges inevitably create law –
this doesn’t mean judicial law making but they should recognize
that their function of judicial review shouldn’t be hidden under the
guise of giving expression to the will of the majority in parliament

o Judicial law making isn’t unbridled – Judicial officers are

accountable:
• Personal responsibility
• Formal responsibility
• Substantive responsibility

Factors that restrict the law making powers of the courts

 The principle of democracy

 Separation of powers
 The common law presumption that the legislature does not
intend to change existing law more than necessary
 The rule of law principle
 Penal provisions
 Judicial officers are accountable on three levels:
1. personal responsibility
2. formal responsibility
3. substantive responsibility

Factors which support modificative interpretation

 Reading down principle

 Section 39(2)
 Bill of Rights
 Constitutional supremacy
 The common law presumption that the legislature does not
intend futile, meaningless and nugatory legislation
 The independence of the judiciary

Possibilities during concretization:

There are no difficulties applying a provision to the facts within the
framework of the purpose and the prescribed Constitutional
guidelines and the process is complete

Modification of the meaning is necessary:

Modification occurs when the initial meaning of the text doesn’t
correspond fully to the purpose of the legislation = where the text has
stipulated either more or less than its purpose or when the initial
meaning of the text is in conflict with the Constitution.

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If the purpose indicates that modification is necessary – in principle

there are 2 possibilities:
1) Either the initial meaning of the text is reduced (restrictive
interpretation)
2) The initial meaning of the text is extended (extensive
interpretation

Question: when may the courts modify the meaning?

If it appears that the initial meaning of the text won’t give effect to the
aim and purpose of the legislation = ambiguity, vagueness and
absurdity are indicators that the initial textual meaning should be
modified – the purpose of the legislation is the qualifier.
Only if there can be doubt about the purpose of the legislation and if
the text, context and Constitution are comparable with the modified
meaning, will the courts be entitled to deviate from the initial textual
meaning

1. Restrictive interpretation
Is applied when the words of the legislation embrace more than its
purpose – the meaning of the text is then modified to reflect the true
purpose.
Any interpretation which limits a wider initial meaning of the text to
the narrower purpose of the legislation = restrictive interpretation

a) Cessante ratione legis

Maxim: if the reason for the law ceases (falls away) the law itself
falls away.
Since legislation can’t be abolished by custom or changed by
circumstances – this rule isn’t applied in SA in its original form
= the legislation remains in force until repealed by the
legislature concerned.

The cessante ratione rule has been applied by SA courts in an

adapted form – in these cases the provisions were merely
suspended as the purpose of the legislation had already been
achieved in another way = it would be unnecessary to apply the
legislation

In Mujee, the accused paid maintenance for his child in an

institution. The child was discharged before the order for
maintenance lapsed and the accused stopped paying. Respondent
requested the court to grant an order to enforce the claim. Based
on the Cessante ratione legis, the accused was acquitted.

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b) Eiusdem generis:
Means “of the same kind”/ “birds of a feather flock together” =
word are known by those with which they are associated.
The meaning of the words are qualified by their relationship to
other words – the rule stipulates that the meaning of general
words is determined when they are used together with specific
words.

Text may be modified; other prerequisites for the application of this

rule must also be satisfied:

a) Eiusdem generis can’t be applied unless specific words refer to a

definite category = common denominator (Skotness).
b) The specific words must not already have exhausted the genus
= its assumed that the general words refer to a broader genus
and therefore can’t be interpreted restrictively.
c) The rule can be applied even when a single specific word
precedes general words.
d) Bugler’s Post: it was held that the order in which the words
appear isn’t important.
e) Eiusdem generis rule can be applied only if the legislation
points to a restrictive interpretation.

S v Kohler: K was convicted of having contravened municipal poultry

regulation by keeping a peacock within the municipal boundaries
without a licence. The regulation defined poultry as any fowl, duck,
goose, turkey, guinea fowl, partridge, pheasant, pigeon or the chickens
thereof, or any other bird. The defence alleged that peacocks are not
poultry. After consulting dictionaries, the court found a peacock to be “a
chicken-like decorative bird”. Since there is already a definite genus (i.e.
poultry), the general words, any other bird, are restricted to that genus
and appeal was dismissed.

2. Extensive interpretation
Instances where the purpose is broader than the initial textual
meaning – the meaning of the text is then widened within the
framework of the purpose of the legislation to give effect to that
purpose.

a) Interpretation by implication:
involves extending the textual meaning on the grounds of a
reasonable and essential implication, which is evident from the
legislation.

Express provisions are extended by implied provisions

• Ex Contrariis: where the statute provides for a specific
situation, it’s assumed ex contraries (from the contrary) that the
opposite arrangement will apply to the opposite situation (De
Beer v Estate Smith) (Keeley)

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• Ex consequentibus: where legislation prohibits a certain result,

that which causes the result is by implication also prohibited
• Where legislation allows a certain result or action – it also
demands or permits everything, which is reasonably necessary
to bring about the result (Richter)
• Ex accessoria eius: this rule provides that if legislation
prohibited or permits a certain thing it follows that accessory
acts are also prohibited or permitted
• Implied inherent relationship (B).

In Keeley, it was held that the phrase “all citizens had to undergo
military training”, by implication it meant that all non-citizens don’t.

In Richter, 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 the right to remove washed-up silt from the dam.

b) Interpretation by analogy:
This involves extending the legislative provisions from one case to a
similar one where the language of the legislation concerned doesn’t
expressly provide for such an analogous situation

Extensive interpretation in general

There is a strong viewpoint that the courts may not tamper with the
meaning of the text of legislation in any way – because of the rigid
adherence to the literal rule.

In many cases the courts have extended the meaning of the text -
courts haven’t regarded this as extensive interpretation, but rather
modification of the language.
Extensive interpretation in general isn’t limited to the correction of
grammatical errors, but even an omission may be supplied.

The courts won’t indiscriminatly modify the meaning of legislation –

only if it’s clear that the initial meaning of the text doesn’t reflect the
purpose of the legislation will the courts have the discretion to modify
or adapt the meaning.

Modification of a clear unambiguous meaning is only permissible if

the text doesn’t reflect the purpose of the legislation

Limits of modificative interpretation

The more drastic the modification, the less certain the courts are of
the purpose of the legislation.
The more confusing the text of the legislation the more difficult it is for
the court to determine the purpose – the discretion of the court is
restricted to less drastic and far-reaching modifications

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Penal provisions in the legislation as well as the presumption against

infringement of existing rights = factors which could limit the
discretion of the courts to modify the initial meaning of the text.
The presumption that the legislature doesn’t intend futile/
meaningless legislation = one of the factors that encourage the court
to modify the ordinary meaning of the text.

In the final instance it’s the aim and purpose of legislation, within the
framework of Constitutional guidelines that should prevail

No modification of the meaning is possible

In the practice of the discretion of the judiciary to modify or adapt the
initial meaning of the text is limited.
If the purpose of the legislation isn’t clear or doesn’t support a
modification of the initial meaning of the text – the legislature has to
rectify errors or supply omissions to the legislation.

If the modification of a meaning isn’t possible – the court will have to

apply the legislation as its read = concretization would be defective
because the text, purpose and particular facts wouldn’t be
harmonized.
The law making discretion of the judiciary is limited to the frame of
reference of the purpose and no further
If the court can’t supply an omission in the legislation, the common
law may be used, if necessary to complete the concretization phase.

Steps to interpret a piece of legislation

a) Read text
b) Read text in light of the context of the act as a whole
c) Consider in light of the Bill
d) Keep presumptions in mind
e) Consult intra-textual aids
f) Consult extra-textual aids
g) Use all the above to find the purpose of the legislation (in terms
of the contextual approach)
h) Compare the purpose with the text
i) Consider the final answer in light of the Constitution and
presumptions
j) Apply to the situation at hand

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Questions

On voting day, the SHARK party begins to distribute plastic

water-bottles within the boundaries of the voting station. The
opposition objects that this violates section 72(2) of the Electoral
Act. The Shark party argues that the items mentioned in the
section do not include water-bottles. You are called in to make a
decision on the matter. Explain the requirements of the eiusdem
generis rule and indicate, with reference to an example from case
law, how it will be applied under the circumstances (if at all).

72. Prohibitions concerning placards and billboards during election. – (1)

No person may deface or unlawfully remove any billboard, placard or poster
published by a party or candidate for the purpose of an election.
(2) On the voting day, no party or candidate or supporter of a party or
candidate may, within the boundaries of a voting station, put up, display or
distribute any billboard, placard, pamphlet or any other item intended to
affect the outcome of the election.

The Euisdem generis rule is used when doing restrictive interpretation.

(limits the wider meaning)
It means ‘Words of the same kind’ or “birds of a feather flock together”

For text to be modified by this rule, other prerequisites need to be

satisfied:
a. It can’t be applied unless specific words refer to a definite
category = a common denominator. (Kohler and Skotness)
b. The specific words must already have exhausted the genus =
it’s assumed that the general words refer to a boarder genus
and therefore can’t be interpreted restrictively.
c. A single specific word should be preceded by general words
d. Burgers Post held that the order in which the words appear
isn’t important
e. This rule can be applied only if the legislation points to a
restrictive interpretation.
In Kohler, the court looked at the dictionary meaning of the word
peacock to see if it fitted within the specific group of “any other bird”.
It is defined as a colourful, decorative like bird and was found that
this was included in “any other bird”.
Based on the above, the handing out of water bottles does violate the
regulation.

DEFINE what “interpretation by implication” means, and then

BRIEFLY describe the three main grounds of extension 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. The three main grounds are ex contrariis,
ex consequentibus and ex accessorio eius.

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DISCUSS whether the courts may exercise a lawmaking function

when they interpret legislation. In your answer you must refer to
the position prior to the advent of the new Constitutional order
(1994) and thereafter.

Prior to 1994, the literalists argued on the bases of the maxims iudicis
est ius dicere sed non dare that the function of the court was to
interpret and not to make the law; and the casus omissus rule that the
courts could not supply an omission in legislative as this was
considered to be the function of the legislature. Contextualists, on the
other hand, argued that the courts could modify the initial meaning of
the text to harmonise it with the purpose. However, this discretion
was qualified by the requirement that such modification was only
permissible if the purpose of the legislation was clear. Labuschagne
and Du Plessis have tried to show that the lawmaking function of the
court does not mean that they take over the legislation function; that
the legislature and the courts are partners in the law making function;
that legislation only becomes a real and a complete functional statute
when it is applied by the court.
The debate has been influenced by the new Constitutional order. The
primary rule of interpretation is now to ascertain the purpose of
legislation in the light of the Bill of Rights and to give effect to it. This
means that the court must first ascertain the purpose of legislation. If
the literal meaning of legislation does not give effect to the purpose,
for example where the text of the legislation has stipulated either more
or less than the purpose or where it is in conflict with the
Constitution, the courts may modify the legislation concerned. The
modification may either be restrictive or extensive.

Briefly explain what each of the following rules of statutory

interpretation entails:

The ex contrariis rule

Ex Contrariis: where the statute provides for a specific situation, it’s

assumed ex contraries (from the contrary) that the opposite
arrangement will apply to the opposite situation (De Beer v Estate
Smith)

In Keeley, it was held that the phrase “all citizens had to undergo
military training”, by implication it meant that all non-citizens don’t.

The cessante ratione rule

Maxim: if the reason for the law ceases (falls away) the law itself falls
away.
Since legislation can’t be abolished by custom or changed by
circumstances – this rule isn’t applied in SA in its original form = the

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legislation remains in force until repealed by the legislature

concerned.

The cessante ratione rule has been applied by SA courts in an adapted

form – in these cases the provisions were merely suspended as the
purpose of the legislation had already been achieved in another way =
it would be unnecessary to apply the legislation

In Mujee, the accused paid maintenance for his child in an institution.

The child was discharged before the order for maintenance lapsed and
the accused stopped paying. Respondent requested the court to grant
an order to enforce the claim. Based on the Cessante ratione legis, the
accused was acquitted.

The ex consequentibus rule

Ex consequentibus: where legislation prohibits a certain result, that

which causes the result is by implication also prohibited
Where legislation allows a certain result or action – it also demands or
permits everything, which is reasonably necessary to bring about the
result (Richter)
In Richter, 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 the right to remove washed-up silt from the dam.

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PEREMPTORY AND DIRECTORY PROVISIONS

When legislation prohibits an act or prescribes a manner in which it

must be performed, it may be necessary to determine what the result
will be if the prescribed formal requirements aren’t complied with.
If the legislation in question expressly prescribes what the
consequences will be if the legislative provisions aren’t followed = no
problem.
Problems: if a provision fails to stipulate what the consequences will
be of a failure to comply with the prescribed formal requirements – the
courts have to determine whether the provision is peremptory
(obligatory) or merely directory (indicating).
• Statutory provisions that require exact compliance is
peremptory – failure to comply with a peremptory provision will
leave the ensuing act null and void.
• Statutory provisions that require substantial compliance are
merely directory – non-compliance with a directory provision
won’t result in nullity of the act.

Now the emphasis isn’t on the mechanical (formal) compliance with

statutory requirements – but rather substantial compliance =
compliance with the aim and purpose of the legislation as a whole.
Courts generally follow a purposive (contextual) approach to
interpretation of provisions.
The language of the provision if read in its context and all intra and
extra-textual aids are used to determine the purpose of the legislation.

The guidelines:
Although the purpose of the relevant legislation remains the deciding
factor, a series of guidelines have been developed by the courts as
initial tests or indicators of the purpose.

Wiechers: these guidelines aren’t binding legal rules but merely

solutions with a persuasive force.
Sentrale Kunsmis: the context of words also plays a part in
determination if it’s peremptory or directory in nature.

Semantic guidelines:
This is based on the inherent grammatical meaning of the language
used.
1. A word with an imperative or affirmative characteristic =
peremptory provision (must/ shall)
2. Permissive words, like ‘May’ indicate a discretion and will be
interpreted as being directory, unless the purpose of the
provision indicates otherwise.
3. Words in negative form indicate a peremptory connotation
4. Positive language suggests the provision is merely directory
5. If the provision is formulated in flexible and vague terms -
indication of directory

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Jurisprudential guidelines
Are those tests based on legal principles, which have been developed
or formulated by the courts?
These are more influential than semantic guidelines and involves an
examination of the consequences of the interpretation of a provision
1. If the wording of a provision is in positive terms and no penal
sanction has been included for non-compliance of the
requirement, it’s an indication that the provision in question
should be regarded as merely directory.
2. If strict compliance with the provision would lead to injustice
and even fraud = directory
3. In some instances the historical context of legislation (mischief
rule) will provide a reliable indication whether the provision is
peremptory or directory.
4. Adding a penalty to a prohibition is a strong indication that the
provision is peremptory
5. If the validity of the act would defeat the purpose of the
legislation = indication in favor of nullity.

CASES ~ NB!

Ex Parte Dow
(your marriage in a garden)

On 7 July 1984, a marriage was solemnized by a minister at a privately

owned residential property. In breach of the provisions of S29(2) of the
Marriage Act, the entire ceremony took place in the front garden in the
open, that is to say that it did not take place in a private dwelling.
S29(2) states that “a marriage officer shall solemnize any marriage in a
church or other building used for religious service, or in a public office or
private dwelling-house, with open doors and in the presence of the
parties themselves and at least two competent witnesses”. The
“marriage” subsequently turned sour, and the “husband” approached
the court with an application to have the purported marriage declared
null and void from the start.
The question here is what the consequences are of the non-compliance
with this section. The so-called “husband” has no doubt about the
matter. The Act says clearly that a marriage officer shall or must
solemnize a marriage inside a church, office or house with open doors. If
a marriage officer fails to do so, he or she commits a crime and can be
prosecuted.
As the prescribed procedure was not strictly complied with, the marriage
was never legally concluded and should be declared null and void.
The argument sounds convincing enough, but this was not what the
court decided.

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The court held that the marriage was legally concluded and that the
disgruntled husband would have to follow the standard divorce
proceedings if he wanted to bring an end to the marriage.

Clarke –
(insurance co – registered mail or hand-delivery. Clarke used normal
post and the co received the letter. The court held in favour of Clarke)

An insurance company denied that it was liable to pay compensation to

an injured road user because that road failed to follow the correct
procedure when his claim was instituted.
Section 11 bis of the Motor Vehicle Insurance Act stated that a claim for
compensation “shall be sent by registered post or by hand to the
registered company”. It continues 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, notice was delivered in time but was sent by ordinary post.
The insurance company took this technical point to try and escape its
liability.
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 and
solve the issue but must instead ask whether the consequences of
requiring strict compliance would be fair in the circumstances.

The court took the following into consideration:

- The imperative use of the language in the section
- 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
- That if the claimant decided not to register the letter, he forfeited
this protection himself and took the risk upon himself and
- 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 escapes liability on the

basis of a technicality which did not prejudice them at all would be
unfair and unjust.
The court therefore held that the provision was directory only and that it
substantially been complied with. The decisive thing to note is that the
court essentially decided the case on what would be fair in the
circumstance, given the overall purpose of the legislation.

Van Dyk
This case dealt with the levying of taxes, the municipality sued for the
out-standing taxes. The municipality did not follow the correct
procedure – they were meant to put up 3 different notices and they

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only put up 1. Van Dyk won). The court held that what is important is
the purpose of the provisions in question and the consequences if the
statutory requirements are strictly adhered to.

A dispute arose about the procedure which had to be followed for the
levying of taxes.
The Local Authorities Ordinance allowed municipalities to assess and
levy, once a year, a general water and sewage rate upon all immovable
property in its district. The Weenen municipality sued Van Dyk for
payment of his outstanding rates and taxes for the year. He 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 be published at least 5 days
apart. The Act further stated that the rates and taxes will become due
and payable a month after the last of these notices had been published.
The municipality, however, had published only one notice in which the
final rates and taxes were set out and a period for inspection stipulated.

African Christian Democratic Party v The Electoral Commission

(2006 - in accordance with a broad, purposive interpretation)

The applicant approached the Court seeking leave to appeal from a

decision of the Electoral Court. The Electoral Court upheld a decision of
the Electoral Commission ruling that the applicant was disqualified from
contesting the imminent local government elections in the Cape
Metropolitan area.

The question raised was whether the applicant had complied with the
provisions of sections 14 and 17 of the Local Government: Municipal
Electoral Act, 27 of 2000. Those provisions require a party (and ward
candidates) who contest an election to lodge with the Commission a
deposit of R3000, as prescribed together with a notice of intention of
contesting the election and a party list. The date by which these things
had to be done for these elections was 19th January 2006. On that date,
the applicant had lodged its notice of intention to oppose, its party list
and candidate nomination forms for all 105 wards in the Cape Metro. It
did not lodge a separate deposit in respect of Cape Town municipality.
However, on that date, it was common cause the Electoral Commission
was holding unallocated funds in an amount of R10 000 that had been
deposited by the applicant as deposits in respect of municipalities it had
subsequently decided not to contest.

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The Electoral Commission took the view that the applicant had not
complied with the provisions of the statute and disqualified it from
participating in the Cape Town elections. The applicant unsuccessfully
applied to the Electoral Court for the decision to be set aside. The
applicant then approached the court seeking leave to appeal.
The court held that the provisions of the Municipal Electoral Act must be
construed in the light of their specific purpose understood in the light of
the overall elections framework and the Constitutional rights and values
relevant to elections. The judge concluded that the surplus held by the
Electoral Commission constituted compliance with the obligation to pay a
deposit within the meaning of the Municipal Electoral Act.

The Court upheld the appeal and declared that the applicant was
entitled to contest the elections. The Electoral Commission was directed
to take all reasonable steps to give effect to the order.

In a separate dissenting judgment, it was stated that what is required is

that regardless of which process a political party chooses to follow in
registering for the election, payment must be made in respect of
specifically identified municipalities. No payment was made by the
ACDP in respect of the Cape Town Metro before the cut off date for
registrations, therefore the applicant failed to comply. The judge further
found that the Commission has no discretion to condone non-compliance
with the time period prescribed – the court emphasised the importance of
compliance with the electoral timetable of the Commission, and stated
that the process itself is as important as the exercise of the citizen’s right
to vote. Accordingly the minority judge found that the ACDP should not
be enrolled in the Cape Town Metro election.

IN THE 2011 case:

The applicant, by way of review, sought to set aside a decision of the
respondent (Commission) not to place the applicant’s name on the list of
registered parties entitled to contest the election in the
Umhlabuyalingana Municipality on 18 May 2011. The applicant also
sought ancillary relief and costs.
National Government Local Elections were to take place on 18 May
2011. The 25 March 2011 being the deadline for political parties and
ward candidates to convey their intention to contest the elections and
they have to do this in terms of ss 14 and 17 of the Local Government:
Municipal Electoral Act No. 27 of 2000 (“the Act”).

It was common cause that relevant documents and the requisite deposit
were submitted to the Commission by the applicant before the cut-off
time of 17h00 on 25 March 2011. Also common cause was that when
submitting party lists the applicant mistakenly filled the designated
number of a wrong municipality.

The issue, therefore, is whether there was proper compliance with the
provisions of ss 14 and 17 of the Act notwithstanding the error above.

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On 23 March 2011 Marlene Briel, the applicant’s National Election

Manager, took a bank guaranteed cheque in the amount of R309 500,00
to the Commission. Briel had lists from each province which indicated
all the municipalities that the applicant was contesting, and which
payment related to. The list from KwaZulu-Natal had been sent via sms
to Briel and only included municipal designation numbers, not the full
names of the municipalities. She had to complete the relevant forms,
which she subsequently did. However, she entered the incorrect number
for Umhlabuyalingana Municipality as KZN 274 which is Hlabisa (which
the applicant had never intended contesting) instead of KZN 271.
As a result of the above error the Commission allocated payment for
Hlabisa and not Umhlabuyalingana.
When the error came to the applicant’s attention they addressed a letter
to the commission to correct same. They received a response indicating
that “the framework does not allow for flexibility, we are therefore
unable to assist in rectifying the situation”.
The court stated that it was clear that in interpreting any provisions of
the Act the purpose thereof must be borne in mind and referred in its
judgment to the decision of the 2006 ACDP case.

In this case the applicant had lodged the notice of intention to contest the
election timeously. It also lodged the party list with the local office of the
Commission. In addition it lodged a deposit in a bank guaranteed
cheque in the amount of R309 500,00, two days before the stipulated
deadline.

The court further stated that it was clear that the incorrect entering of the
designated numbers was a genuine mistake.
The court held that the Commission’s refusal to reallocate the funds was
an injustice to the right to vote and the applicant’s right to participate in
the local elections in terms of section 9 of the Constitution.
The court stated that a proper interpretation of ss 14 and 17 is the one
consistent with our Constitutional values. It is evident that the
Commission overlooked the central purpose of these provisions when it
interpreted them narrowly. The decision, therefore, ought to be set aside.

Presumption regarding specific cases:

1. With regard to provisions which protect the public revenue
(taxes) a presumption against nullity exists even if a penal
clause has been added
2. Where legislation confers a right, privilege or immunity, the
requirements are peremptory and the right can’t be validly
obtained unless the prescribed formalities are complied with
3. If the other provisions of the legislation would become
meaningless when non-compliance with the prescribed
requirements would result in nullity of the act – there’s a
presumption that the requirements are directory
4. Where the individual of the individual are at stake the court
stresses the peremptory nature of the requirements

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5. If the provision required that a certain act has to be performed

within a prescribed time and the court hasn’t been empowered
to grant an extension of time = peremptory

Peremptory provisions in the Constitution

Section 2: the Constitution is the supreme law of the Republic, ant
law or conduct that is inconsistent with it is invalid and the obligation
imposed by it must be fulfilled

Section 7 (2): the state must respect, promote and fulfill the rights in
the Bill

Section 39 (2): when interpreting any legislation and when developing

the common or customary law every court must promote the spirit,
purport and objects of the Bill.

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Questions

What is a peremptory provision and how does it differ from a

directory provision;

Peremptory: these are statutory provisions which require exact

compliance. Failure to comply with these will leave the ensuring Act
null and void. (Ex Parte Dow)
Directory: these are statutory provisions which require substantial
compliance. Non-compliance won’t result in the nullity of the Act.
(Clarke)

Lorna is appointed by the President as a member of the

Commission for a period of six years. The Commission argues
that in terms of section 5(1) members of the Commission shall
hold office for a period not exceeding five years. Advise the
Commission on this argument by explaining how a peremptory
provision differs from a directory provision, and whether the
appointment complied with the statutory requirements. (Refer
to the two leading examples from case law illustrating the
difference.)

A peremptory provision is a statutory provision that requires exact

compliance. Failure to comply exactly will leave the ensuing action null
and void. A directory provision requires substantial compliance Non-
compliance will not result in the ensuing actions being null and void.
The court will usually decide whether there has been sufficient
compliance with the provision. There are a number of semantic and
jurisprudential guidelines that assist to determine what degree of
compliance would be sufficient in each case. However, none of these
guidelines are decisive. The overriding question is what would be just,
equitable (fair) and practical in the light of the aim and purpose of the
legislative provision and the Bill of Rights.

In Weenen v Van Dyk the court had to decide whether the failure of a
municipality to publish three separate notices in a newspaper meant
that the rates and taxes in question were not due and payable. The
municipality published only one notice. The Court held that the
failure to comply with the procedure was fatal and that the taxes
were accordingly not due. The Act used imperative language "shall
publish" and the object or purpose of the three notices was to
establish a democratic system of checks and balances and
accountability. That object could not be met if only one notice was
published. The provision was peremptory and had to be strictly
complied with.

In Commercial Union v Clarke the court had to decide whether the

failure of a road user to send his claim by registered post meant that
the road user could not claim. The road user sent the claim by

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ordinary post. The court held that the failure to comply with the
procedure was not fatal and that the claim could still be instituted.
The court took the imperative nature of the Act ("shall be sent") into
consideration but held that it must still decide what is just, fair and
practical given the object of the provision.

The purpose of the provision was to protect the insured driver by

providing definite proof of the date on which the claim was lodged.
The road user took the risk upon himself when he sent the claim by
ordinary mail but this did not prejudice the insurance company in
any way. It would thus be just, fair and practical to allow the claim to
proceed. In the light of the above and the imperative language ('shall
hold office ... not exceeding five years') it seems that the appointment
has not complied with the statutory requirements.

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METHODS OF CONSTITUTIONAL INTERPRETATION

1. Grammatical (textual)

This deals with the importance of the role of language of the

Constitution. It focuses on the linguistic and grammatical meaning of
the words and the text.

2. Systematic (contextual)

The clarification of the words and the Constitution as a whole (social

and political environment). Intra and extra textual aids are used.

3. Teleological

The aim and purpose of the provision must be ascertained against the
fundamental rights and the Constitutional values must be taken into
consideration.

4. Historical

This includes the factors which gave rise to the adoption of the
Constitution. (negotiations etc.)

5. Comparative

This is the process during which the court examines international law
and the decisions of foreign courts.

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Guidelines for Constitutional interpretation.

• A supreme Constitution must be given a generous and purposive

interpretation (Shabalala v The Attorney-General of Transvaal)
• Case law refers to a liberal interpretation of the Constitution.
This means that there must be flexibility and generosity taking
into account the spirit and intention of the framers.
• The spirit and tenor of the Constitution must be taken into
account throughout the process.
• A provision in the Constitution cannot be read in isolation but
must be read in the context as a whole.
• Consider the language of the text.
• Always protect human rights (S v A Juvenille).
• The Constitution must be interpreted in the context and setting
existing at the time when the case is heard.
• Must balance the various societal interests and values.
Interpretation is not a ‘free floating exercise’.
• The method of interpretation do not constitute a closed set of
hard and fast rules, interpretation is an inherently flexible
process.
• When interpreting, effect must be given to fundamental rights
and values contained in the Supreme Constitution.
• The principles of international human rights law and foreign law
must be applied with due regard for the South African context (S
v Zuma).

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Questions

List and explain the five methods of Constitutional interpretation

that must be applied in this matter

Or

Explain in detail what the “comprehensive and inclusive” method

of Constitutional interpretation entails (seeing that the Court will
follow this method when deciding the case).

Or

Name and discuss the various dimensions of the "practical

inclusive method of interpretation" favoured by Botha Statutory
Interpretation : An Introduction for Students

Or

Explain the "comprehensive and inclusive methods of

Constitutional interpretation" as described by Du Plessis and
Corder in Botha Statutory Interpretation

As above (Points 1 - 5)

List 10 guidelines for Constitutional interpretation.

• Must be given a generous and purposive interpretation (Shabalala)

• Liberal interpretation - that there must be flexibility and generosity.
• The spirit and tenor of the Constitution must be taken into account
throughout the process.
• A provision in the Constitution cannot be read in isolation but must
be read in the context as a whole.
• Consider the language of the text.
• Always protect human rights (S v A Juvenille).
• The Constitution must be interpreted in the context and setting
existing at the time when the case is heard.
• Interpretation is not a ‘free floating exercise’.
• The method of interpretation do not constitute a closed set of hard
and fast rules, interpretation is an inherently flexible process.
• When interpreting, effect must be given to fundamental rights and
values contained in the Supreme Constitution.
• The principles of international human rights law and foreign law
must be applied with due regard for the South African context.

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