LEGAL STATUS OF RULES OF INTERPRETATION

The rules of interpretation are not rules in the original sense of having a binding force. The
correct attitude which the courts have adopted is that the rules are our servants not our
masters. The rules are aids to interpretation. Not infrequently one rule points in one direction,
another in a different direction. In each of these cases, the court must look at all relevant
circumstances and decide if there is any rule at all which is binding. You may not for any
reasons attach to a statutory provision a meaning which the words of that provision cannot
reasonably bear. If they are not capable of more than one meaning then you can choose
between those meanings but beyond that you must not go.

THEORIES OF STATUTORY INTERPRETATION

The oldest and most basic theory to statutory interpretation is the literal theory or cardinal
theory of interpretation.

The Literal Approach to Interpretation

This theory holds that the words of a statute must be given their ordinary literal meaning.
This theory is premised on several principles, namely that the role of a judge is to apply the
law and not to make it and that the only difficulty is determining what parliament has said to
help determine what the literal or ordinary meaning of the word may be. Judges use aids to
help clarify what Parliament has said and in this context dictionaries become important in
determining the meaning of words used in statutory provisions e.g. in Minister of the
Interior v. Machadorp Investments 1957 (2) SA 395, the court used a dictionary to
interpret the word ‘tribe’.

In construing a statement the object is to ascertain the intention which the legislature meant
to express from the language which it employed. By far the most important rule to guide the
court in arriving at the intention is to take the language of the instrument as a whole and
when the words are clear and unambiguous to place upon them their grammatical
construction and to give them their ordinary meaning (see Ventor v. R 1907 TS 910)

Ebrahim v. Minister of the Interior 1977 (1) SA 665

The court sought to interpret the words “outside the republic” where they had been used
as in the Citizenship Act. The Citizenship Act provided that a South African citizen would
lose his citizenship if he acquired foreign nationality whilst outside the republic. The
respondent, Mr. Ebrahim who was employed as part of the crew in a ship acquired British
citizenship whilst working on a ship which happened to be docked in South African
territorial waters at the time. Mr. Ebrahim was however ordinarily resident in London.
 The majority decided the words “whilst outside the republic” should be given their literal
meaning such that Mr. Ebrahim was said not to have forfeited his South African
citizenship at the time when British citizenship was conferred on him.

In S v. Takaendesa 1972 (1) RLR 162, Beadle CJ referred to “the elementary rules on the
interpretation of statutes”, and cited, with approval, the excerpt from Maxwell on Interpretation
of Statutes. The quotation adopted by the Chief Justice continues, “Where, by the use of clear
and unequivocal language capable of only one meaning, anything is enacted by the
legislature, it must be enforced however harsh or absurd or contrary to common sense the
result may be.  . . The duty of the court is to expound the law as it stands, and to ‘leave the
remedy (if one be resolved upon) to others’.”

1. The pre-occupation of the literal approach to interpretation with the grammatical meaning
of words and with semantics has been criticized in that it can result in odd and
unsatisfactory outcomes.
Lee v. Knap [1967] 2 QB 442
An Act required that a motorist “stop” after an accident. The defendant claimed that
they did in fact momentarily halt, before proceeding, therefore complying with a
commonly accepted literal meaning of “stop”. The judge found that in this
circumstance “stop” meant halt and wait for police or other officials to investigate the
accident. A literal interpretation was against the purpose of the law.
The learned Lord Esher had this to say about the literal approach, “If the words in the
act are clear then you must follow them even if they lead to an absurdity, the court has
nothing to do with the question of whether the legislature committed an absurdity.” In
other words the role of the court is to apply the statute in its literal sense regardless of the
outcome. Should the outcome yield an unsatisfactory result then it is the duty of the
legislature to provide a remedy by enacting provisions to correct or to counter the
negative outcome. The courts should not read into legislation that is not there.
Thus, in S v. Masiriva 1990 (1) ZLR 373, where the court was called upon to interpret
section 46(4) of the Road Traffic Act [Chapter 23:19], the court applied the provision
in its ordinary and grammatical sense.

There are certain principles which govern the application of the literal approach.

1. In a statute dealing with technical matters words must be given their technical and not
ordinary meaning. If the statute in question deals with matters affecting everybody,
generally, the words will take their ordinary everyday meaning. But if it deals with
particular matters of a particular trade, business or transaction and words are used which
everybody conversant with that trade, business or transaction knows or understands to
have a particular meaning in that setting then the words are to be construed as having a
particular meaning though it may differ from the everyday meaning of the words. Beadle
CJ said in Lornho Ltd v. Salisbury Municipality 1970 (4) SA 1 (RAD), “When in a
 technical statute like in a patent statute the legislature uses words which for some 300
years have been recognized as having technical meaning then it can be assumed that
the legislature intended to use the words in their recognized technical sense and not in
their popular sense unless of course it appears from the context in which the words are
used that the legislature intended to depart from the proper technical meaning”.
2. Words must be given their meaning in the context in which they are used. Interpreting
words in their context requires the courts to pay due regard not only to the meaning
assigned to the grammatical and semantic use of language but also the contextual scene
which requires consideration of the rest of the statute as well as its subject matter and its
content. (See Stellenbosch Farmer’s Winery Ltd v. Distillers Corporation 1962 (1)
SA 452). Dictionary definitions of particular words are very often of fundamental
importance in the judicial interpretation of that word in a statute. Never-the-less the task
of interpretation is not always fulfilled by a dictionary definition. What must be
ascertained is the meaning of that word in its particular context. (See Lorin (Pty) Ltd v.
Solay Tea and Coffee (Pty) Ltd 1984 (3) SA)

The court must give effect to each and every word used in the provision under consideration.
A statute can be construed in such a manner that no clause, sentence or word shall be found
to be superfluous, void or insignificant, if it can be prevented. Sometimes this cannot be
avoided because legislative drafters have a tendency to use actology for emphasis, clarity and
certainty. In Minister of Justice v. Jacobson 1937 AD 466, Wessels ACJ said, “The court
is not always bound to the literal meaning of the words because the draftsperson may have
made a mistake in the use of a word or may have omitted a word or added what is mere
surplus age.”

Horn v. State

A prostitute was charged under the Immorality Act with being a person who knowingly
lives on the earnings of prostitution. The court held the view that since a prostitute always
knows that she is living on the earning of prostitution and it was strange to contemplate a
prostitute who does not know why she is being paid, the use of the word “knowingly” in
that provision was actology. In order to put the word “knowingly” to some use in the
scheme of the section in question it must apply to the persons who trade in or benefit from
the prostitute’s activities. Accordingly, the section was ruled to apply to a person not being
a prostitute who lives on the earning of such a prostitute.

In response to these and other shortcomings of the literal approach courts have developed
two qualifications to the literal approach, namely, the golden rule and the mischief rule

1. Golden Rule – Also looks at the literal meaning of the words but allows the courts to
avoid an interpretation which may lead to an absurd result. The foremost authority in our
jurisdiction in the golden rule is Venter v. Rex 1907 TS 910 @ 913, “In construing the
statute the object is, of course, to ascertain the intention which the legislature meant to
express from the language which it employed. By far the most important rule to guide the
courts to arriving at the intention is to take the language of the instrument as a whole and
when the words are clear and unambiguous, to place upon them, their ordinary effect”.
The golden rule provides that the ordinary meaning of the words used must be followed
unless this would lead to an absurdity or is at variance with the intention of the
legislature.
In Volshenk v. Volshenk 1946 TPD 486, Malan J said, “If a rigid, grammatical
construction of the language employed leads to a result which is manifestly absurd,
unjust, unreasonable or inconsistent with other provisions or repugnant to the general
object, tenor or object of the statute, the court could justify its departing from the
literal sense or in modifying and extending it as it will secure a conclusion which will
eliminate such objection and give true expression to the true intention of the
legislature.”

Venter v. Rex 1907 TS 910

A certain Mr. Venter who had been born in another colony came and lived in the
Transvaal colony for many years. At some point he left to stay in the Orange River
colony for 6 years although it had always been his intention to eventually return to the
Transvaal. While in Orange River he was convicted of theft and sentenced to one-year
imprisonment. After serving his sentence he returned to the Transvaal. Upon his
return he was arrested for contravening a law which had been passed prohibiting “any
person” who had ever been convicted of an offence outside the Transvaal from
entering the Transvaal. Upon a literal reading of the statute in question “any person”
meant any person whatsoever, including people who were ordinarily resident in the
Transvaal but had committed offences upon brief visits outside the colony. The court
found this to be so absurd that the legislature could not have intended the law to apply
to people who were resident in the Transvaal at the time they committed offences
outside the Transvaal. The court figured that the law was intended to prevent an influx
into the Transvaal of criminals from abroad, as they would probably continue with
their criminal activities in the Transvaal. The legislature could not have intended to
prevent its own citizens and residents from re-entering the Transvaal. The court held
that this was an appropriate case to depart from the plain or ordinary meaning of the
words in order to avoid absurdity and give effect to the intention of the legislature.
Nevertheless Mr. Venter was convicted on the grounds that he was not a resident in the
Transvaal at the time he committed the offence. He was then residing in the Orange
River colony where he resided for 6 years. Had the court found him to be a Transvaal
resident it would have acquitted him.

In R v. Takawira and Ors 1965 RLR 162 the courts departed from the literal meaning
of a statute on the basis that such an interpretation would make it impossible to
implement the law itself and could not have been intended by the legislature. Quenet JP
made reference to Venter v. R where it was established that the court may depart from
the ordinary meaning of the words to the extent necessary to remove the absurdity and to
give effect to the intention of the legislature.
In deciding the case Innes CJ made it clear that the mere fact that the ordinary plain
meaning of words in a statute leads to an absurdity is not enough. “If the words of an act
are clear, you must follow them, even though they lead to a manifest absurdity. The
court has nothing to do with the question of whether the legislature has committed an
absurdity.”
Only when the absurdity is such as the legislature could never have been contemplated
will the court be justified in departing from the ordinary plain meaning of the words
However, there are two applications to the golden rule,
a. Narrow Application – It is used when ambiguous words are used in the statute and
this application allows the court to use the most suitable meaning of the ambiguous
word or phrase in order to avoid an absurd result from occurring as it was said in S v.
Shangase 1972 (2) SA 410, “If the meaning of the words of an act is clear the court is
not concerned with the policy of the legislature.” It was also said by Beadle ACJ in S
v. Robinson, “Where the language is plain and admits of but one meaning the task
of interpretation can hardly be said to arise. Whereby the use of clear and
unequivocal language capable of only one meaning, it must be enforced however
harsh or absurd or contrary to common sense the result may be. The interpretation
of a statute is not to be collected from any notions which might be entertained by
the courts as to what is just and expedient. Words are not to be construed contrary
to their meaning as embracing or excluding cases merely because no good reason
appears why they should not be embraced. The duty of the court is to expand the
law as it stands and to leave the remedy to others.”
R v. Allan
Section 57 of the Offenses against the Person Act made it an offense to “marry”
whilst the original spouse was still alive. A was charged under the provision
because he had purported to marry someone else while his spouse was still alive. A,
claimed that he had not married anyone because he was not legally married. The
court ruled that the word “marry” as used in the act means to go through a
ceremony of marriage because to accept otherwise would produce an absurd result.
b. Wider Application - The court is permitted to depart from the clear unambiguous
language of statute if to do otherwise would lead to an absurdity so glaring it would
not have been intended by the legislature or where it would lead to a result contrary to
the intention of the legislature or any such other considerations that the court is
justified to take into account then the court may depart from the ordinary effect of the
words to the extent necessary to remove the absurdity and to give effect to the true
intention of the legislature.
R v. Sigsworth 1936
 A son had murdered his mother and the mother had not made a will in terms of the
Administration of Justice Act 1925. Because she had died interstate the next of kin
who happened to be the murderous son stood to inherit her estate but the court
refused to let a murderer benefit from his crime. Notwithstanding that there was no
ambiguity in the provision in question. It was ruled that the literal rule should not
apply and the golden rule was used to avoid a repugnant situation.
The literal and golden rules are preoccupied with determining what parliament has
said.
2. Mischief Rule – It is used to determine what parliament meant in cases where the
application of the literal meaning of the words used in the provision in question would
lead to an outcome which would defeat the very purpose of the provision. The Mischief
Rule derives from an old English case referred to as the Haydon case of 1584. The
Mischief Rule was applied in the famous case of Smith v. Hughes.
Smith v. Hughes (1960) 1 WLR 831
A law in England namely section 1 (1) of the Street Offences Act 1959 made it an
offence for prostitutes to solicit “in the street”. A prostitute solicited from her balcony
or window at a passerby who was walking in the street. The question was whether the
prostitute had in fact solicited “in the street”. One possible interpretation was that she
had not solicited in the street because she was not in the street. The other possible
interpretation was that she had breached the act because her victim at whom her
solicitations were directed was in fact in the street. It was not clear from the
formulation of the statute whether “in the street” was meant to be in relation to the
prostitute or to the victim. The provision was therefore ambiguous. The court resolved
the ambiguity by the use of the mischief rule. The judge, Lord Parker CJ said, “For my
part, I approach the matter by considering what the mischief aimed at by this act is.
Everybody knows that this was an act to clean up the streets to enable people to walk
along the streets without being molested or solicited by common prostitutes”. Taking
this approach the judge concluded that in light of the mischief aimed at, the precise
place from which a prostitute addressed her solicitations to somebody walking in the
street was irrelevant. As long as her victim was in the street, it did not matter whether
or not the prostitute herself was in the street. The prostitute had therefore committed
the offence.
In Commissioner of Taxes v. F 1976 RLR 106, the courts refused to apply the literal
meaning of a provision in tax legislation which would have allowed one to evade paying
their taxes. The courts work to ensure that the legislature’s intention to suppress the
mischief prevails as opposed to strictly following the meaning and allowing “subtle
inventions and evasions for the continuance of the mischief”.
To discover the mischief in a statute or provision therein the court is allowed to look at
the history, background, purpose and object of the statute.
There are four points which the courts consider in applying the Mischief Rule,
a. What was the common law before the act?
 b. What was the defect that the common law did not provide for?
c. What is the remedy that parliament has resolved?
d. What is the true reason for the remedy?
Having answered all these questions the court should prefer an interpretation of the
provision which seeks to suppress the mischief identified and then apply the remedy.

The Purposive Approach to Interpretation

It holds that statutes should be interpreted in light of the purpose behind the legislation. It
recognizes that interpretation cannot be sorely founded on the wording of the legislation. The
Purposive Approach requires that interpretation should not depend exclusively on the literal
meaning of the words, semantic and grammatical analysis. A purposive methodology looks
beyond a manifested intention. The Purposive Theory has its rationale in the fact that a statute is
a legislative communication between the legislature and the public that is inherently purposive.
The interpreter must therefore endeavour to infer the design or purpose which lies behind the
legislature. In order to do this the interpreter must make use of an unqualified contextual
approach which allows an unconditional examination of all internal and external forces.

The difference between the Mischief Rule and the Purposive Approach is that the former is a
qualification of the Literal Approach to interpretation since it can only be applied where there is
ambiguity. The Purposive Approach on the other hand endeavours to interpret a statutory
provision in accordance with its underlying purpose in all circumstances regardless of whether
there is ambiguity or not. It also avoids the negative connotations associated with the mischief
rule. It recognizes that legislation is not always passed to address a mischief but to regulate the
conduct of citizens in accordance with stated policy positions. In determining the purpose of a
statute the court is allowed to have regard to extrinsic material such as documents which discuss
or spell out the policy which informed the statute and examples of such material are
parliamentary debates, the second reading speech, reports to the Law Development Commission
and reports to parliamentary committees. Although the Purposive Approach is a clearly valuable
aid in the interpretation of statutes it has been criticized on the basis that it opens up the judiciary
to the accusation of making laws under the guise of interpretation. It has also been said that the
purpose or reason for an act may itself be subject to controversy and no less difficult to resolve
than the question of intent and or meaning.

Teleological/Value Coherent/Philosophical Approach to Interpretation

This is a theory commonly associated with the natural law school and therefore is an integral
part of the Roman-Dutch law ethos. It is informed by the natural law school and holds that there
are certain basic values and principles which form the foundation of the legal system and the
courts should always endeavour to interpret statutes in a manner as to promote those values.
Even in the case of written laws, “A judge should bend himself taking into primary account
equity in his interpretations”. So while the Literal Approach is concerned with giving the
intention of the legislature and the Purposive Approach is pre-occupied with the underlying
purpose, the Teleological Approach is concerned with the spirit of the statute. Thus, in pursuit of
the Teleological Approach the judge is allowed to attribute strain or improbable meaning to
words in order to arrive at an outcome which serves the higher values of the legal system. In
Eystom v. Studd All England Law Reports 1005, it was said, “And in order to form a right
judgement on how the letter of a statute is restrained or when enlarged, by equity it is a good way
to peruse a statute, to suppose that the law maker is present and you have asked him the question
touching the equity, then you must give yourself an answer as you imagine he would have done
if he had been present and if the law maker would have followed the equity notwithstanding the
words of the law, you may do likewise.” Under the bounds of the Philosophical Theory the
bounds of genuine interpretation are considerably extended. The legislative enactment, according
to this theory merely lays down a general guide and gives the courts wide leeway in which to
deal with individual cases as the justice of the case demands in light of the reason and moral
sense of men generally. Accordingly the court will use the statute applicable in the case at hand
as a general guide but the ethical situation among the litigants will be the determining factor.
Justice in the pending controversy is the court’s primary object and as such is also the basic
legislative intent in all legislation.

In Smyth v. Ushewokunze and Anor 1997 (2) ZLR 544, the court held that in arriving at the
proper meaning of a constitutional provision guaranteeing a right, the court should endeavour to
expand the reach of the right rather than attenuate the meaning and content. What is accrued is a
generous and purposive interpretation with an eye on the spirit as well as the letter of the
provision, one takes full account of changing conditions, social norms and values. The aim must
be to move away from formalism and make human rights a practical reality.