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Statutory Interpretation Notes
Statutory Interpretation Notes
The interpretation of statutes, more precisely, the juridical understanding of legal texts.
Legislation, in other words, deals with the body of rules and principles which are used to
construct the correct meaning of legislative provisions to be applied in practical situations. The
use of these principles/rules is necessary for the following reasons:
the written and spoken words are imperfect renderings of human thoughts
in the case of legislation, the courts are obliged to use specific rules of interpretation to
construe its meaning.
Types of Legislation
Original Legislation: these are Acts of Parliament; derives from the complete and
comprehensive legislature capacity of an elected legislative body AKA direct or primary
legislative capacity. Since it is derived directly from the Constitution or is assigned by another
Act of Parliament.
Delegated Legislation: Acts of parliament and other forms of original legislation are
sometimes drafted in broad terms (skeleton form), because the respective legislative bodies are
not continuous in session to deal with every possibility in a changing society. Delegated
legislation then adds the flesh. The legislature might find it necessary to delegate some of its
powers to other persons, bodies or tribunals. These are then vested with delegated legislative
(subordinate legislative) powers under enabling legislation.
1
Literal Approach
The first theory is a theory of literalism (plain-meaning approach). It is condensed at the
true meaning of the text, it is to be sought in ipsissima verba used in the legislature: the
meaning it equated with linguistic/philosophical meaning.
The safer course to adopt is to observe the literal and grammatical sense of words employed
and leave it to the legislature, which also is at the hands for the purpose to amend the law in
case such construction should not carry out its real intention.
The literal rule in its crude (basic/simple) form has undergone metamorphosis
(change/alteration). This is because in its crude form, the literal rule says that if the words of
an enactment are unambiguous and clear, then you apply it, notwithstanding its absurdity of
its application.
According to the textualist, the interpretative process should proceed along the following
lines:
1. It is the primary rule of interpretation that if the meaning of the words is clear, it
should be put into effect and indeed equated with the legislatures intention.
CASE: Principle Immigration Officer v Hawabu 1936 AD 26
2. If the so-called plain meaning of the words is ambiguous, vague or misleading, or
if a strict literal interpretation would result in absurd results, then the court may
deviate from the literal meaning to avoid such an absurdity
CASE:
Venter v R
1907 TS 910 914
This is also known as the golden rule of interpretation (secondary aids of
interpretation). This is used to find out the intention of the legislature (such as the
long title of the statute, headings to chapters and sections).
3. Should these secondary aids to interpretation prove insufficient to ascertain the
intention, the courts will have recourse to the so-called tertiary aids to
construction.
i.
ii.
iii.
iv.
v.
Some crucial methods of interpretation (internal and external) are overlooked and
disregarded.
As a consequence, the intention of the legislature is reliant on how clear the language
used in the legislation may be to the particular court.
In the narrow approach, words are considered as the basic guide to legislative meaning.
The literal approach leaves very little room for judicial law-making, and the courts are seen as
mere mechanical interpreters of the law.
*The Golden rule is part of the Literal rule. The Golden rule modifies the meaning of the words
CASE: Farrars Estate v CIR
1926 TPD 501
In particular at page 504 the court said: the governing rule of interpretation over writing the socalled golden rule is to endeavor to ascertain the intention of the lawmaker from the study of
provisions of the enactment in question.
The literal approach seems to still be popular through the influence of English law. Generally
speaking, 4 factors led to the adoption of the textual approach in England:
Misconception about separation of powers (the trias politica doctrine) and sovereignty of
Parliament resulted in acceptance of the idea that the courts function should be limited to
the interpretation and application of the will of the legislature as recorded in the text of the
particular legislation. In other words, the will of the legislature is only to be found in the
words of the legislation.
The doctrine of legal positivism influenced the literal approach in England. The positivists
idea is based on the absolute validity of the decree/command. The role of the court is
limited to the analysis of the law as it is not as it ought to be.
England has a common law tradition in which the courts traditionally played a very creative
role in regard to common law principles. As a result, legislation has been viewed as the
exception to the rule, altering the traditional common law as little as possible.
True interpretation is always suppressive of the mischief in that it is conclusive to the remedy
aimed at its elimination. The mischief approach examines the purpose of legislation because the
purpose of legislation is sometimes used to shed light on the true intention of the legislation once
the plain meaning has failed.
CASE: Jaga v Donges
1950 (4) SA 653 (A)
Schreiner JA argued in favor of the purposive approach, hence according to him, that this
approach aims at avoiding the pitfall of literalism throughout the process of interpretation.
Cowen maintains with Schreiner that the interpretation of an enactment involves and requires
recognition of its contextual framework right from the outset. Thus a proper balance is ought
therefore to be struct between the grammatical meaning and the overall context.
Recourse to the contextual element should not occur only to the plain/grammatical meaning of
the enactment proves to be insufficient due to ambiguity. This approach is referred to as a more
modern approach to interpretation of statutes.
CASE: Mjuqu v Johannesburg City Council 1973 (3) SA 421 (A)
This case can be regarded as a model of the contextual approach. This case made use of all the
aids of statutory interpretation surrounding the circumstances used to determine the scope of the
interpretation. The judge took in account the intention of the legislature.
CASE: University of Cape Town v Cape Bar Council 1986 (4) SA 903
The court held that the court has to examine all the contextual factors in ascertaining the
intention of the legislature, irrespective of whether or not the words of the legislature are clear
and unambiguous.
CASE: Public Carriers Association v Toll Road Concessionaries (Pty) Ltd 1990 (1) SA 925
Smalberger JA came to the conclusion that although the intention of the legislature is the primary
rule of interpretation, it must be accepted that the literal interpretation principle is firmly
entrenched in our law and I do not seek to challenge it.
Judicial Theory:
This is a free theory of interpretation, which in its moderate form recognizes and justifies and in
its radical form, which vehemently advocates the creative role to be played by the judiciary in
the interpretation and application of statutes.
S v Makwanyane
CASE: