The enactment of both the interim and final Constitution ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BLCR 969 (C) is true. The interpretative approach adopted by South African courts pre-1994 Statutory interpretation pre-1994 lacked a single theoretical starting point. There was no single methodology that was applied to interpret legislation.
Consequently the process of interpreting legislation involved a mixture of theoretical approaches that were often conflicting and inconsistent. One of the theoretical approaches that were used pre-1994 was the text-based approach. The text-based approach accords the legislation in question its literal meaning. In Principal Immigration Officer v Hawabu 1936 AD 26 it was stated that: “It is the primary rule of interpretation that, if the meaning of the text is clear, it should be applied, and, indeed, equated with the legislatures intention.”
The text-based approach to interpreting legislation relies heavily on the meaning of the words. Therefore the intention of the legislator is subject to the literal meaning of the text. This is made clear in the following dictum of Stratford JA in Bhyat v Commissioner of Immigration 1932 AD 125 129:
The cardinal rule of construction of a statute is to endeavor to arrive at the intention of the lawgiver from the language employed in the enactment… in construing a provision of an Act of Parliament the plain meaning of language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the Legislature could not have intended.
It is very clear that the text based theoretical approach to interpreting legislation has a narrow focus on words. It ignores other important aids to interpretation, which could be used to establish the meaning of the text in context. Although the text based theoretical approach was the dominant form of interpreting legislation pre 1994, other theoretical approaches were used such as the text in context approach. The use of other approaches was necessitated by the obvious failures of the text-based approach in certain contexts. The remark of King J v Adams 1979 (4) SA 793 (T) 801 demonstrates the limitations of following the text based interpretation approach of legislation: An Act of Parliament creates law but not necessarily equity. As a judge in a Court of Law I am obliged to give effect to the provisions of an Act of
Parliament. Speaking for myself and if I were sitting as a court of equity, I would have to come to the assistance of the appellant. Unfortunately, and on an intellectually honest approach, I am compelled to conclude that the appeal must fail.
The text in context approach provides a balance between the literal grammatical meaning and overall contextual meaning. This approach recognizes the contextual framework of the legislation. However this approach was not widely used pre 1994 even though there were attempts in certain cases to move beyond the plain grammatical meaning to ascertain the legislative purpose. The Jaga v Donges 1950 (4) SA 653 (A) case is an example of an attempt to use an approach that moves beyond literal grammatical meaning in establishing the legislative purpose. The majority of the court in this case still chose to adopt a text-based approach.
The interpretative approach adopted by South African courts post 1994 The interpretation of legislation post 1994 is governed by the Constitution specifically Section 39(2) which provides: When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. While the Constitution does not specifically prescribe a contextual based approach to interpretation of legislation it gives effect to this approach because it forces the interpreter of legislation to consult the Constitution before dealing with the legislative text. This inevitably means that extra-textual factors are being considered before the legislative text is considered in its literal grammatical sense.
The Constitution imposes a single theoretical starting point in interpreting legislation. This was made clear by Ngcobo J in the Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC): The Constitution is … the starting point in interpreting any legislation. … first, the interpretation that is placed upon a statute must, where possible, be one that would advance at least an identifiable value enshrined in the Bill of Rights; and, second, the statute must be capable of such interpretation… The emerging trend in statutory construction is to have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.
Post 1994 the Constitution is the supreme law of the land consequently it makes demands on the interpretation of legislative text. The Constitution needs to be applied in all courts in interpreting legislation to give effect the concept of the Constitutional state. However there are still instances where courts use a hybrid
approach in interpreting legislation. For example in Shackleton Credit Management (Pty) Ltd v Scholtz the court outlined three interpretation approaches: 1. The golden rule (the plain meaning of the text must be followed unless it leads to an absurdity or a result not intended by the legislature); 2. The purposive approach (the words must be read in context); and 3. Reading –in in an attempt to make sense of the legislation (the creative role of the court)
There are problems with the approach outlined above in that it imposes a mutually exclusive way of thinking. Try A and then B if A does not work. This is not in line with using the Constitution as a starting point for interpreting legislation. There is still an attempt to use a text-based approach and only when it fails will other external factors such as the purpose of the legislator will be considered. Under the new Constitution this approach is not practical since it runs the risk of ignoring Constitutional provisions.
Under the new Constitution there are suitable practical approaches to interpreting legislative text without resorting to the text-based approach. Du Plessis and Corder (1994: 73-74) suggest the following:
Language aspect (words and phrases) Structure and context Value based aspect (Teleological interpretation) Historical aspect Comparative aspect
Ignoring the Constitution when interpreting legislative text is not an option since the Constitution is the starting point. Therefore the values enshrined in the Constitution must be reflected in law and legislative text cannot be in contravention of the Constitution. The challenge is how to give effect to the values of the Constitution when interpreting legislative text.
The impact of the Constitution (specifically section 39(2)) on statutory interpretation post 1994 The new Constitution has largely rendered the debate between the text-based approach and the contextual based approach largely irrelevant. Both the Interim Constitution and the 1996 Constitution include an express and mandatory interpretation provision.
Statutory interpretation has to give due regard to the Constitution. This imposes a vale-laden framework on the interpretation of legislative text. Section 39 (2) of the Constitution specifically deals with the interpretation of legislation and it provides as follows:
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. This means that the interpretation of legislative texts starts with the Constitution and not with the legislative text. The Constitution is based on principles that respect the dignity of all its citizens within a democratic context. Therefore the process of interpreting legislation within the context of the Constitution must take due regard of this context.
The Constitution is the supreme law and therefore its impact should be manifest in all-legislative texts. In S v Makwanyane Mahomed J had the following to say regarding the Constitution to underline the supreme nature of the Constitution: All constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that ethos; and the moral and ethical direction which that nation has identified for its future.
In some countries the Constitution only formalizes, in a legal instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and inspirationally egalitarian ethos, expressly articulated in the Constitution.
It therefore follows that any interpretation of legislative text needs to be in harmony with the Constitution in order to have legal force and be unchallenged in its application Conclusion There is no doubt that the interpretation of legislative text requires a mind shift post 1994. The text based approach to legislative interpretation which was largely dominant pre 1994 does not promote due regard of the Constitution. The risk is that it will produce laws that are in conflict with the Constitution since it does not take cognizance of wider issues outside the literal grammatical meaning of the text.
The law does not operate in a vacuum nor is it an exact science that can rely on a predetermined mechanistic approach to derive law through interpretation of legislative text.
Principal Immigration Officer v Hawabu 1936 AD 26 Bhyat v Commissioner of Immigration 1932 AD 125 129 King J v Adams 1979 (4) SA 793 (T) 801 Jaga v Donges 1950 (4) SA 653 (A) Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC): Du Plessis and Corder (1994: 73-74) Section 39(2) In S v Makwanyane Mahomed J Daniels v Campbell 2003 (9) BLCR 969 (C)
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