UNIVERSITY OF ZIMBABWE DEPARTMENT OF PUBLIC LAW

INTERPRETATION OF STATUTES

The Influence of the Constitution on Statutory Interpretation

Cases
1. Hambly V Chief Immigration Officer 1995 (2) ZLR 264
2. Ngaru V Chief Immigtation Officer SC 26 / 04,
3. Mutumwa Dziva Mawere V Registar General CCZ 4 / 15
4. National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
5. R.M.D. Chamarbaugwalla v. The Union of India (UOI
6. Mudzuru and Tsopodzi v Minister of Justice, Legal and Parliamentary
Affairs and Anor CCZ 12 / 15
7. Holomisa v Argus Newspapers Ltd 1996 (2) SA 588
8. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
9. and Tourism 2004 (4) SA 490
10. Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd v Smit. 2001 (1) SA 545
11. Simon Francis Mann V Government Of Equatorial Guinea HH 1/
2008
12. Barker McCormac (PVT) LTD v Government of Kenya 1983 (1)
ZLR 137 (HC).
13. Sibanda V ICRC HH 54-2002
14. Mildred Mapingure V Minister of Home Affairs and ors SC 22/14

Zimbabwe enacted a new Constitution in 2013. This Constitution came in to preside

over a legal system that already had its own rules of statutory and legal interpretation.
The question we will seek to answer is how does the new Constitution affect the
existing rules and approaches to statutory interpretation?

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It must be noted that some of the key provisions in the Constitution relating to
interpretation of statutes are modelled almost word for word on corresponding
provisions of the South African Constitution of 1996. Over the last 19 years the SA
courts, particularly the Constitutional Court has developed an impressive jurisprudence
around the role of the Constitution in the interpretation of statutes. Given the
similarities between the SA and the Zimbabwe Constitutions and the fact that it is yet
too early for the Zimbabwean Constitutional court to have heard enough cases to
develop its own jurisprudence, we will be guided in this part of the study by South
African cases.

The Supremacy Clause

The starting point of this discussion is the principle of supremacy of the Constitution.
Section 2 of the Constitution reads:

(1) This Constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the
inconsistency.
(2) The obligations imposed by this Constitution are binding on every person,
natural or juristic, including the State and all executive, legislative and judicial
institutions and agencies of government at every level, and must be fulfilled by
them.

Thus:
– The Constitution is the supreme law of the Republic of Zimbabwe,
– law or conduct inconsistent with it is invalid, and
– the obligations imposed by it must be fulfilled.

The Constitution intersects with statutory interpretation in several ways. One of this
ways is through operation of the presumption that statutes should be ascribed a

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meaning which is Constitutionally valid, not invalid, (the presumption of valid
meaning or presumption of Constitutionality.

THE ROLE OF THE COURTS

Section 175 of the Constitution

Powers of courts in Constitutional matters

(1) Where a court makes an order concerning the Constitutional invalidity of any
law or any conduct of the President or Parliament, the order has no force unless it
is confirmed by the Constitutional Court.

( the conduct of administrative authorities can be declared unconstitutional

without the need for confirmation by the Constitutional court e.g. unlawful arrest
or detention, failure to observe the principles of natural justice in a disciplinary
hearing, refusal to grant citizenship, deprivation of citizenship )

(2) A court which makes an order of Constitutional invalidity referred to in

subsection (1) may grant a temporary interdict or other temporary relief to a
party, or may adjourn the proceedings, pending a decision of the Constitutional
Court on the validity of the law or conduct concerned.
(3) Any person with a sufficient interest may appeal, or apply, directly to the
Constitutional Court to confirm or vary an order concerning Constitutional validity
by a court in terms of subsection (1).
(4) If a Constitutional matter arises in any proceedings before a court, the person
presiding over that court may and, if so requested by any party to the
proceedings, must refer the matter to the Constitutional Court unless he or she
considers the request is merely frivolous or vexatious.
(5) An Act of Parliament or rules of court must provide for the reference to the
Constitutional Court of an order concerning Constitutional invalidity made in terms
of subsection (1) by a court other than the Constitutional Court.

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 (6) When deciding a Constitutional matter within its jurisdiction a court may—
(a) declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of the inconsistency;
(b) make any order that is just and equitable, including an order limiting the
retrospective effect of the declaration of invalidity and an order suspending
conditionally or unconditionally the declaration of invalidity for any period to allow
the competent authority to correct the defect.

Reading down, reading in & severance during Constitutional review

Section 2 of the Constitution declares that the Constitution is the supreme law of the
land and any law that is inconsistent with it is invalid to the extent of the inconsistency.
Embodies in this provision is the idea that a law need not be declared wholly invalid
just because it contains provisions which are contrary to the Constitution. It is possible
to address the problematic provisions and so preserve the statute or the provision in
a modified form, through the process of interpretation. This is made possible by the
presumption of legislative intent which holds that the legislature is aware of the
provisions of the Constitution and always intends to act Constitutionally. If therefore
a provision appears to be unconstitutional, the courts should try to modify the
legislation to keep it alive and Constitutional to avoid leaving a vacuum by simply
invalidating it. The courts use several devises to address the unconstitutionality of
statutory provisions:
Reading down, reading in and severance.

Reading Down
Reading down is a restricted Constitutional interpretation that will be preferred instead
of declaring the statute invalid. This remedy stems from the principle that: The courts
should try to keep legislation Constitutional and in line with common law presumption
that the legislation is not futile or meaning less. Therefore if legislation is, on the face
of it, unconstitutional, but is reasonably capable of a more restricted interpretation
which will be Constitutional and valid, such restricted interpretation should be followed
''reading down"

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Hambly V Chief Immigration Officer 1995 (2) ZLR 264 & Ngaru V Chief
Immigtation Officer SC 26 / 04,

Section 22 of the Immigration Act provides that no information or reasons on which a

decision by the Minister to declare any person a prohibited person or a decision to
withdraw or cancel a permit was made may be disclosed in any court if the Minister
certifies that its disclosure is not in the public interest, and no court may question the
adequacy of the grounds for any such decision.

At face value, this provision excludes the right of an immigrant to seek a judicial review
of the reason upon which a decision to expel him has been made, but in the case of
Hambly V Chief Immigration Officer 1995 (2)ZLR 264, and in Ngaru V Chief
Immigtation Officer SC 26 / 04, the Supreme Court has interpreted this provision
in light of the right of protection of the law provided for in section 18 of the Lancaster
House Constitution, such that where the Minister has declared any person to be a
prohibited person and has certified that disclosure of the reasons why he has made
the declaration is not in the public interest, the Minister is nevertheless obliged to
disclose these reasons in court, in camera as provided for in section 18(12) of the
Constitution. The modified outcome in keeping with the Constitution was possible
because the Court restricted ( read down) the powers of the Minister conferred by
Parliament.

See also Mutumwa Dziva Mawere V Registar General CCZ 4 / 15 where the
Court had to read down section 9 of the citizenship Act. Section 9 prohibits dual
citizenship for every citizen of Zimbabwe regardless of how that citizenship was
acquired yet section 39(2)(a) provides that citizenship by birth cannot be revoked
merely because the citizen acquired citizenship of another country. So the application
of section 9 of the Citizenship Act was “read down” and restricted to citizens by descent
and by registration.

Reading In

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This is a more drastic remedy used by the courts to change legislation in order to
keep it Constitutional. In exceptional circumstances the court will "read" something
into a provision in order to rescue a provision, or a part of it from the fate of
unconstitutionality.
In National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs the

Facts:
The Constitutionality of Section 25(5) of the Aliens Control Act, SA, which allows the
spouse or child of a person with the status of a permanent resident to immigrate to
SA to join her/his spouse or parent, was disputed as gay and lesbian permanent
residents were not allowed to rely on this section to arrange for the immigration of
their life partners. This, they claimed, was a form of unfair discrimination against
them on the basis of their sexual orientation.

The court could have simply declared section 25(5) unconstitutional and invalidated it
by they decided against this course action for the following reasons given by the court:
"The striking down of s 25(5) will have the unfortunate result of depriving
spouses, as presently defined, from the benefits conferred by the section: it
will indeed be 'equality with a vengeance' and create 'equal graveyards'
The benefits conferred on spouses express a clear policy of the government
to protect and enhance the family life of spouses.
All these considerations indicate that, if reasonably possible, a striking down
order should not be the remedy resorted to [ ] Against the background of
what has been said above
I am satisfied that the Constitutional defect in s 25(5) can be cured with
sufficient precision by reading in after the word 'spouse' the following words:
or partner, in a permanent same-sex life partnership' and that it should
indeed be cured in this manner.
Permanent in this context means an established intention of the parties to
cohabit with one another permanently.
Finding:

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It was held that the Constitutional defect in Section 25(5) can be cured with sufficient
precision  by  reading  in  after  the  word  ‘spouse’  the  following  words:  ‘or  partner,  in  a  
permanent same-sex   life   partnership’   and   that   it   should   indeed   be   cured   in this
manner.

Principles to be followed before Reading In

CC laid down a number of principles to be considered and followed before "reading
in" or severance is applied:
– It should be applied with caution, since the court then changes the legislation.
– The legislative function is entrusted to bodies and persons authorised to enact
legislation.
– Results of severance or reading in must be consistent with the Constitution &
its values
– Result must have only minimal interference with existing legislation
– The courts must be precise in defining scope of modification to the meaning
of legislation in order to make it compliant
– The courts must endeavour to remain within legislative scheme (aim purpose)
as much as the Constitution allows
– Reading in remedy should not be employed where the result would impose
– unattainable/unsupportable budgetary burden.

Severance
This is the opposite of "reading in". The court will try to rescue a provision from the
fate of unconstitutionally by cutting out the offending part of the provision to keep
the remainder Constitutional and valid.

R.M.D. Chamarbaugwalla v. The Union of India (UOI ) is considered to be one

of the most important cases on the Doctrine of Severability. In this case, the court
observed that:

“The doctrine of severability rests, …….. on a presumed intention of the

legislature that if a part of a statute turns out to be void, that should not affect

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 the validity of the rest of it, and that that intention is to be ascertained from
the terms of the statute. It is the true nature of the subject-matter of the
legislation that is the determining factor, and while a classification made in the
statute might go far to support a conclusion in favour of severability, the
absence of it does not necessarily preclude it.”

The court further said that:

“When a statute is in part void, it will be enforced as regards the rest, if that
is severable “

See the case of Mudzuru and Tsopodzi v Minister of Justice, Legal and
Parliamentary Affairs and Anor CCZ 12 / 15 in which the Con Court Struck out
section 22 of the Marriages Act [Cap 5:11] for the reason that it contravened section
78 of the Constitution in as far as it allowed the marriage of girls below the age of
18.

Section 2 must be read with the following sections:

Section 44 Which could be termed the obligation clause, which

states The State and every person, including juristic
persons, and every institution and agency of the
government at every level must respect, protect,
promote and fulfil the rights and freedoms set out in this
Chapter.

Section 45(1) Which states that the D/R applies to all law and binds the
legislative, the executive, the judiciary and all organs of
state.

S 45(2) Which provides that the D/R applies to both natural and juristic
persons.

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 Section 324 Which states that all Constitutional obligations must be
performed diligently and without delay.

If all these provisions are read together, one principle is indisputable: the Constitution
is supreme, and everything and everybody is subject to it. This means that the
Constitution cannot be interpreted in the light of:
- the Interpretation Act or
- the Roman-Dutch common law or
- the traditional customary law.

Thus we see that:

- everything and everybody,
- all law and conduct,
- all traditions, dogmas and perceptions;
- rules and procedures, and
- all theories, canons and maxims
of interpretation are influenced and qualified by the Constitution.

Judge Cameron summarized this principle very well in Holomisa v Argus

Newspapers Ltd 1996 (2) SA 588
The Constitution has changed the context of all legal thought and decision-
making in South Africa.

The traditional Zimbabwean approach to statutory interpretation was characterised by

a strict devotion to the legislative text. Now the supreme Constitution, underpinned
by universally accepted values and norms, is the fundamental law of the land. It is
the ultimate value laden yardstick against which everything is viewed and reviewed.

THE STATUTORY INTERPRETATION PROVISIONS OF THE CONSTITUTION

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Apart from section 2, the Constitution contains other provisions which have a direct
influence on the interpretation of statutes because they have direct instructions to the
judiciary on how to interpret statutes. They are discussed below

1. The Declaration of Rights

S 46(2) of the Constitution provides:
When interpreting an enactment, and when developing the common law and
customary law, every court, tribunal, forum or body must promote and be
guided by the spirit and objectives of this Chapter.

The Constitution does not expressly prescribe a contextual and purposive approach
to statutory interpretation. However, S 46(2) is a peremptory provision which means
that all courts, tribunals or forums must review the aim and purpose of legislation in
the light of the Bill of Rights; That is to say, plain meanings and so-called clear,
unambiguous texts are no longer sufficient. Even before a specific legislative text is
read, S 46(2) f o r c e s the interpreter to have one foot in the Bill of Rights of the
Constitution to promote the values and objects in the D/R.

This means that factors and circumstances outside the legislative text are immediately
involved in the interpretation process. In short, interpretation of statutes starts with
the Constitution, and not with the legislative text.

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

and Tourism 2004 (4) SA 490

The Constitution is now the supreme law in our country. It is therefore the starting
point in interpreting any legislation. Indeed,  every  court  “must  promote  the  spirit,  
purport  and  objects  of  the  Bill  of  Rights”  when  interpreting  any  legislation.    That  is  
the command of section 39(2). Implicit in this command are two propositions: 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

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second, the statute must be reasonably capable of such interpretation. This flows
from   the   fact   that   the   Bill   of   Rights   “is   a   cornerstone of [our Constitutional]
democracy.”     It   “affirms   the   democratic   values   of   human   dignity,   equality   and  
freedom.”    In  interpreting  section  2(j),  therefore,  we  must  promote  the  values  of  
our Constitutional democracy. But what are these values?

Investigating Directorate: Serious Economic Offences v Hyundai Motor

Distributors (Pty) Ltd v Smit. 2001 (1) SA 545

“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 all statutes must be interpreted through the prism of the Bill of
Rights. All law-making authority must be exercised in accordance with the
Constitution. The Constitution is located in a history which 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. As such, the process of interpreting the Constitution must recognise
the context in which we find ourselves and the Constitution’s  goal  of  a  society  based  
on democratic values, social justice and fundamental human rights. This spirit of
transition and transformation characterises the Constitutional enterprise as a whole.

The purport and objects of the Constitution find expression in section 1 which lays
out the fundamental values which the Constitution is designed to achieve. The
Constitution requires that judicial officers read legislation, where possible, in ways
which give effect to its fundamental values. Consistently with this, when the
Constitutionality of legislation is in issue, they are under a duty to examine the
objects and purport of an Act and to read the provisions of the legislation, so far as

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 is possible, in conformity with the Constitution.   ……………..   Accordingly,   judicial  
officers must prefer interpretations of legislation that fall within Constitutional
bounds over those that do not, provided that such an interpretation can be
reasonably ascribed to the section. Limits must, however, be placed on the
application of this principle.24 On the one hand, it is the duty of a judicial officer to
interpret legislation in conformity with the Constitution so far as this is reasonably
possible. On the other hand, the legislature is under a duty to pass legislation that
is reasonably clear and precise, enabling citizens and officials to understand what is
expected of them. A balance will often have to be struck as to how this tension is
to be resolved when considering the Constitutionality of legislation. There will be
occasions when a judicial officer will find that the legislation, though open to a
meaning which would be unConstitutional,  is  reasonably  capable  of  being  read  “in  
conformity with the Constitution”.  Such  an  interpretation  should  not,  however,  be  
unduly strained.

2. Customary International Law

S 326(2) of the Constitution is another interpretation clause:

When interpreting legislation, every court and tribunal must adopt any
reasonable interpretation of the legislation that is consistent with customary
international law applicable in Zimbabwe, in preference to an alternative
interpretation inconsistent with that law.

Section 326(2) is a peremptory provision. It states that a court must prefer a

reasonable interpretation that is not in conflict with international law:
i) Any interpretation of S326 is subject to
S 2 (Constitution is the supreme law of the Republic and any law inconsistent
with it is invalid);
S 44(1) (the Declaration of Rights applies to all law; as well as - all references
to the democracy and democratic values.

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 ii) It is a confirmation of the principle that legislation must, as far as possible,
be interpreted Constitutionally.
S 326 is also qualified by the two other provisions dealing with international
law in the Constitution (ss 327 and 226(1); into these provisions the application
international law in SA is in any event subject to the Constitution.
Finally, it may be argued that it strengthens S 46(2) of the Constitution in that any
reasonable construction which is consistent with international law (international
human rights law in particular), will promote the spirit, purport and objects of the
Declaration of Rights.

3. The values underpinning the Constitution

The values are set out in section 3 of the Constitution as follows:

Founding values and principles
(1) Zimbabwe is founded on respect for the following values and principles—
(a) supremacy of the Constitution;
(b) the rule of law;
(c) fundamental human rights and freedoms;
(d)  the  nation’s  diverse  cultural,  religious  and  traditional  values;;
(e) recognition of the inherent dignity and worth of each human being;
(f) recognition of the equality of all human beings;
(g) gender equality;
(h) good governance; and
(i) recognition of and respect for the liberation struggle.
(2) The principles of good governance, which bind the State and all institutions and
agencies of government at every level, include—
(a) a multi-party democratic political system;
(b) an electoral system based on—
(i) universal adult suffrage and equality of votes;
(ii) free, fair and regular elections; and
(iii) adequate representation of the electorate;
(c) the orderly transfer of power following elections;

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(d) respect for the rights of all political parties;
(e) observance of the principle of separation of powers;
(f) respect for the people of Zimbabwe, from whom the authority to govern is derived;
(g) transparency, justice, accountability and responsiveness;
(h) the fostering of national unity, peace and stability, with due regard to diversity of
languages, customary practices and traditions;
(i) recognition of the rights of—
(i) ethnic, racial, cultural, linguistic and religious groups;
(ii) persons with disabilities;
(iii) women, the elderly, youths and children;
(iv) veterans of the liberation struggle;
(j) the equitable sharing of national resources, including land;
(k) due respect for vested rights; and
(l) the devolution and decentralisation of governmental power and functions.

The first thing to note is that the Constitution is a value-laden document.

It is underpinned by a number of express and implied values and norms:
These fundamental principles are not only ideals to which Zimbabwean society has
committed itself, but they form the material guidelines which must regulate all state
activities. The spirit of the D/R is the reflection of these fundamental principles.

Apart from the Constitution itself, these values are found in various sources etc. -
principles of international human rights law and foreign case law dealing with similar
Constitutions; - the African concept of Ubuntu / hunhu and our common law
heritage. S 46(1)(b) and 86(2) refer to an open and democratic society based on
freedom, equality, and human dignity. These are the core values on which the
Constitution rests.
The courts are the guardians and therefore enforcers of the values underlying the
Constitution. This means that courts will have to make certain value judgement during
the interpretation and application of all legislation.

IV. The National Objectives

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The Constitution set out national objectives in Chapter 2 ( Sections 8 - 34) although
this is not expressly stated in the Constitution, the common belief, which still has to
be tested by the Constitutional Court is that the provisions are Chapter 2 are not
justiciable. This view is problematic given the peremptory language used. “must”

Section 8 provides:
(1) The objectives set out in this Chapter guide the State and all institutions
and agencies of government at every level in formulating and implementing
laws and policy decisions that will lead to the establishment, enhancement and
promotion of a sustainable, just, free and democratic society in which people
enjoy prosperous, happy and fulfilling lives.
(2) Regard must be had to the objectives set out in this Chapter when
interpreting  the  State’s  obligations  under  this  Constitution and any other law.

Thus even though it may be correct that Chapter 2 does not contain justiciable rights,
subsection 2 of section 8 makes it clear that the national objective provide a criterion
to guide the interpretation of statutes. This chapter is one of the aspects in which the
Zimbabwean Constitution differs from the South African. There is no jurisprudence
from the Constitutional Court of South Africa from which we can gain assistance.

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