INTRODUCTION

The subject of interpretation of statutes is concerned with a study of rules that are used by the
courts to establish the meaning of statutory provisions.

Parliament’s junction is to make law. It is the function of the court to interpret and apply the law
made by Parliament. In the court’s day to day duties it is required to determine the meaning of
one statutory provision or another. In most cases the meaning of the statutory provision that the
court would be dealing with will be clear. In such cases the court is never called upon to make
conscious determination of the meaning of the provision or a word or phrase within the
provision. The court will simply arrive at the meaning unconsciously without posing to consider.

However, every now and again the court will find itself faced with a statutory provision (or a
word or phrase within the provision) whose meaning is unclear or disputed. Language by its very
nature has inherent limitations. It could be that statutory provision (or a word, phrase or sentence
within the provision) is capable of more than one meaning or that the provision is unclear in the
sense that it is difficult to attach any meaning to it. Sometimes the legislative draftsman may
simply make a poor choice of words. In such cases uncertainties then arise as to what exactly
Parliament meant to convey in a particular statutory provision. The court will need to know
various rules of interpreting statutes in order to come up with the correct meaning.

While the ordinary grammatical meaning of words in a statute usually tells us what the provision
means, instances arise when adherence to the literal grammatical meaning of a provision
convinces us that the words were not meant to be understood in their literal sense. Under what
circumstances should a court depart from the plain literal meaning of a provision? Is there no
danger that when the court departs from the literal meaning of words in a statute, it begins to rely
on conjecture and may end up inputting in a statute a meaning the legislature never intended?
Where the legislature has made what appears to the court to be an obvious omission in a
statutory provision should the court modify the language used in the enactment and read in
words which are not included but which it is sure the legislature wanted to include? Would this
not amount to usurping the functions of the legislature? The rules of interpretation have to
address some of these questions.

Statute law and its place in our legal system

Before dwelling further into the subject of interpretation of statutes, it is useful to put the subject
into perspective by identifying its place in the legal system.

There are various classifications of law. One system classifies law into

1. Customary law; and

 2. General law (which in turn is divided into common law and statute law)

Customary Law

Customary law refers to that law that is based on the customs and usages of the indigenous
people of Zimbabwe, dating back to the pre-colonial times. Customary law still enjoys limited
recognition in our legal system particularly in the field of family law. However, it is fast
disappearing and being overshadowed and elbowed-out by general law.

General Law

General Law refers to the bulk of the country’s law, that is, all that which is not customary law is
divided into

1. Statute law; and

2. Common law

Since customary law now has only very limited application in our legal system, general law
forms, the bulk of the country’s laws. Statute law is the law made by Parliament, while the
common law is that law that has been developed by communities from the earliest times driven
by common sense and reason. Different communities developed their own systems of common
law but most of these systems have broad similarities. The main sources of common law are
legal textbooks and judicial decisions as reported in law reports while the only source of statute
law is the statute books. By virtue of the country’s colonial history, Zimbabwe inherited the
Roman-Dutch system of common law.

Statute law

Since the common law evolves after a long period of time, it does not cater for the new needs of
an ever-changing and modern society in order to keep pace with the new developments, needs
and demands of modern society, new laws need to be put in place and some old laws may need
to be changed and done away with. Even some common law rules and principles may need to be
discarded or changed where it is felt they no longer meet the needs and expectations of society.
This is where statute law come in. There is a special government arm or organ namely
Parliament or the legislature, which is tasked with making laws for the country. Parliament
passes laws in the form of statutes.

Parliament would not be able to make every little law that is needed for the smooth running of all
institutions in the country or for the regulation of all sectors of society. So Parliament often
delegates some of its law making functions to various public bodies and public officials. Local
authorities like the Harare Municipality for example are given power to pass some laws
regulating affairs affecting them e.g. on matters to do with the collection of rates, dog licensing,
building standards, etc. Various statutes of Parliament give some government ministers power to
pass laws dealing with the running of government ministries or departments. And in terms of the
Presidential Powers (Temporary Measures) Act, Parliament gives the state President
sweeping powers to pass laws. Parliament is not allowed to delegate unlimited law making
power to someone else because under the country’s constitution, the law making function
remains primarily that of Parliament. When Parliament delegates law making power it does so in
a statute and the statute must spell out the extent and limits of delegated power. The public
authority or public officials to whom Parliament has delegated some law making functions
should not go beyond the power that has been given to it or him as spelt out in the parent statute.
Otherwise any such law that goes beyond the limits defined by or that is inconsistent with the
parent statute that confers power in the first place will be held by the courts to be ultra vires the
parent statute and therefore invalid.

Laws made by public officials or public authorities under delegated powers are referred to as
subsidiary legislation. Terms such as “by-laws”, “regulations”, “rules” and “notices” are specific
forms of subsidiary legislation. They get their different names depending on what they are
intended for. For example subsidiary legislation passed by local authorities is normally referred
to as “by-laws” while subsidiary legislation dealing with matters of court procedure comes in the
form of “rules” of the court. Subsidiary legislation is of the same force and effect as if made by
Parliament. So the rules of statutory interpretation apply to all statute law, whether made directly
by Parliament or under authority delegated by Parliament.

The function of the court to interpret and not to legislate

In line with the principle of separation of powers, Parliament makes the laws, the executive
implements the laws and the judiciary interprets the laws. Generally speaking, no organ should
interfere with or usurp the functions of the other. The function of the court is, therefore, simply
to interpret and apply the laws given by Parliament. All the rules of interpretation of statutes
have one objective namely, to help the court ascertain and give effect to the intention of the
legislature as conveyed by the words used in the statutory provision. When interpreting statutes,
the courts generally do not have the authority to question the desirability or propriety of laws
made by Parliament. The court must find and give effect to the intention of the legislature even
though doing so may result in injustice or unreasonableness in particular cases.

S v. Takaendesa 1972 (2) 72 (RAD) @ 72

“The mere fact that to give the words their clear and unequivocal meaning, may, in certain
unforeseen circumstances cause inconvenience and hardship is no justification for a court of
law assuming the mantle of the legislature and itself amending the statute. The function of the
court is to declare law as given by the legislature and not to make it.”

But in the following instances, the courts may be able to avoid the unjust or unreasonable
consequences of a law
 (a) When the court has a choice between two possible interpretations the court may choose
the interpretation that does not lead to unreasonable, unjust or absurd consequences with
the presumption that the legislature does not intend to be unreasonable.

(b) Any law that is in conflict with any of the provisions of the constitution maybe declared
unconstitutional and therefore invalid. Presumption of constitutionality.

(c) Provisions of subsidiary legislation may be declared null and void if they are ultra vires
the enabling act.

Otherwise in all other cases the courts must faithfully interpret the law so as to give effect to the
intention of the legislature as expressed by the words used in the statutory provision. The courts
will however not give effect to the unexpressed intention of the legislature as this would also
amount to usurpation of the function of the legislature. If the legislature intended to say
something but then omitted to express it or if the legislature intended to say one thing but went
on to say something else, the courts will not normally give effect to this unexpressed intention.
The law must be reasonably certain; hence the need to give effect only to what has been
expressed in words.

The subject of interpretation of statutes then dwells on the principles and rules by which courts
endeavour to establish the meaning of text in statutes. The subject consists of an assortment of
rules, maxims and presumptions. Sometimes choosing which rule, maxim or presumption applies
to a particular provision can be a difficult task. Unfortunately different textbooks writers and in
some cases, the courts themselves, have not been consistent, particularly on how and when to
apply a particular rule

“It is notorious that canons of statutory interpretation, far from forming a symmetrical and
harmonious body of rules overlap and often contradict one another. It is not too much to say they
consist of a number of guides which largely cancel each other out, of learned formulas giving a
deceptive appearance of logic which only serves to conceal the choice between opposing
conclusions of equal logical validity, and of matriculate ideological premises which depend on
personal prediction and on changing trends of public and social policy.” (Cockram p.36)

While this statement contains some grain of truth, it however seems to exaggerate the problem.
Some of the perceived contradictions and inconsistencies stem from a failure to understand the
correct relationship among the different rules. In this course an attempt will be made to
demonstrate that the rules of interpretation properly understood are largely harmonious and
complementary rather than contradictory.

The cornerstone of the subject of interpretation is what is known as the three general rules of
interpretation and their relationship to each other. The rest of the rules, maxims, presumptions,
etc are only secondary to the three general rules. The general rules as the name suggests, are of
general application to most statutes while the rest of the minor rules and principles, by whatever
name called, are confined in their application to certain specific scenarios.

Parliament, which has the power to make any laws to change or modify common law rules, has
had a role to play in the subject of interpretation of statutes.

In Zimbabwe, as in South Africa and many other countries, Parliament has enacted the
Interpretation Act (Chapter 1:01). The Interpretation Act is not meant to alter much the
common law rules on interpretation of statutes, but rather, it complements them. In the
Interpretation Act, Parliament has come up with certain specific rules of interpreting all statutes.
Most of the rules covered by the Interpretation Act refer to matters not catered for by common
law rules, maxims and presumptions. Furthermore, the rules in the Interpretation Act are of a
more specific nature than the common law rules, presumptions and maxims that are more general
in nature. In that sense therefore the Interpretation Act adds to or supplements the common law.
However, a recent amendment which came into effect in 2003 introduced a new section 15B
whose effect is to amend the common law rules relating to the use of extrinsic material in the
interpretation of statutes.

The Interpretation Act is not the only vehicle that Parliament has used to help in the
interpretation of statutes. A significant number of Acts/statutes which have been enacted contain
a definition section. The definition or interpretation section is some kind of mini-dictionary in
which Parliament gives a list of words and phrases which it has used in that act and tells us what
meaning Parliament wants us to attach to those words and phrases. Parliament usually does that
when the meaning it wants to attach to such words or phrases is different from the ordinary
dictionary meaning. It is when it attaches a technical meaning to the words and phrases.

So there are two ways in which Parliament has made a contribution in the interpretation of
statutes, that is through the Interpretation Act and definition sections in specific statutes.,

Separation of Powers

Legislature makes the law, executive seeks to implement the law and the judiciary interprets the
law. Interpretation should not result in alteration of the law (see Seafood Courts v. Asher 1949
(2) Kings bench 481). A judge should ask himself if the makers of the act themselves had come
across this problem in the texture of the law how would they have straightened it out. To
interpret means to attribute a particular meaning to a statement. It is a process by which a judge
or any person who has occasion to search the meaning of a statute constructs from the words of
the statute a meaning which he believes to be that of the legislature. Interpretation is necessary
when there is doubt to the meaning (doubt has to be sound, genuine and clear). Doubt as to the
meaning of a statutory provision arises when there is ambiguity, uncertainty or an apparent gap
in the law (casas omisus) e.g. Section 4 of the Education Act says that every child in Zimbabwe
shall have a right to primary education (the gap is that it does not say to whom the right is
enforceable against). In determining the meaning of every statement in a statute, the first
question is to ask is always that, “What is the natural meaning of the phrase in its context in a
statute?” It is only when that meaning leads to some result which cannot reasonably be supposed
to have been the intention of the legislature that it is proper to look for some other possible
meaning for the phrase. In other words the most important principle in statutory interpretation is
that in seeking to find the meaning of a statutory provision, judges should resort first and
foremost to the words of a statute. It is only when the meaning gained by consideration of the
words is unsustainable for one reason or another that resort should be made to other possibilities.