MAXIMS OF INTERPRETATION

A maxim is a ‘saying that expresses a general truth or rule of conduct’. In legal language a
maxim is a saying or sta tement usually in Latin – used to denote a rule or principle.

1. Ejusdem generis (of the same kind) rule

This maxim literally translated means “of the same kind” and it holds that where
particular words are followed by general words in a statute. The meaning given to the
general words is limited to the same kind as the particular words. E.g. where a statute
provided that “no tradesman, artisan, workman, labourer or other person whatsoever shall
do or exercise any worldly labour, business or work of their ordinary calling on
Sundays… ”. The words “or other person whatsoever” were construed as ejusdem
generis with those which preceded them such that an estate agent was deemed not to be
covered by this section (See Gregory v. Fearn 1953 (1) WLR 974). Another example is
where the court held that in a statute a department of conservation the authority to sell
gravel, sand, earth or other material, the term ‘other material’ could only be interpreted to
include materials of the same general type and did not include commercial timber.

The rationale behind this maxim is that it saves the legislature from having to spell out in
advance every contingent to which the maxim would apply

Sacks v. The City of Johannesburg 1931 TPD 443

A traffic by-law provided that ‘no person shall sit or lie down on the street, nor shall any
person stand, congregate, loiter or walk, or otherwise act in such a manner as to obstruct
traffic’. The accused was addressing a crown from a car in a public street during an
industrial action. The gathered crowd ended up obstructing the street. It was held that the
particular words all referred to an obstruction by a direct physical act of the accused, and
therefore that the general words “or otherwise act in such a manner as to obstruct free
traffic” did not include an obstruction caused by a crowd gathered to hear the accused.

However, it must be noted that the mere existence of general words upon particular
words does not necessarily invoke he application of the ejusdem generis. According to
Van Heerden J in S v. Saidi 1962 (2) SA 128 the rule will only apply where the clear
category is followed by words which are not clear. In that case, the provision in question
prohibited the obstruction of free passage along the public street by means of any wagon,
cart, or other thing whatsoever. The court declined to interpret the general words as
meaning only wheeled vehicles, and decided that it included an obstruction caused by
boxes full of vegetables. This was because according to the court the object of the law
giver was clear – mainly to prevent the obstruction of public streets. The court ruled that
the words ‘or other things whatsoever’ were clear and unambiguous in the context in
 which they were used i.e. they were words of the widest connotation and were obviously
used to include all things except persons.

S v. Vandermever 1977 (2) SA 774

The Respondent had been charged with contravening a provision of a statute in that he
had used fuel in his motor vehicle and then exceeded the speed limit. He admitted that
he had used the fuel known as methanol. Under the regulation in question fuel was
defined as including diesel, oil, petrol, or any other substance capable of being used as
a fuel. The trial magistrate had applied the ejusdem generis maxim to limit the
definition of fuel to oil products. On appeal it was ruled that the words ‘any other
substance’ in the definition of fuel referred directly to any other fuel which could be
used for the operation of a motor vehicle.

In decoding whether to apply the maxim one must first consider the scope and object of
the enactment to be considered as well as the mischief which the statute is targeting. Such
was the case in R v. Bono 1953 where the court held that the provision which prohibited
the collection of money in the public streets whether for charity purposes or otherwise
also included political objects.

The maxim cannot apply where the particular objects/words do not form a genus/class.

S v. Makandigona 1981 (4) SA 439

The Prevention of Corruption Act refers to any receipt, account or other document. It
was held to include the issuing by a driving examiner of a certificate of competence
indicating that a candidate has passed a driving test when in fact she had not. The
question for determination was whether a certificate of competence is a receipt,
account or other document. It was held that “It must be remembered that the ejusdem
rule is only one of many rules of construction, it is not to be evoked automatically
when general words follow particular words. It should be applied with caution and not
pushed too far. It should be treated as a mere presumption in the absence of other
indications of the intention of the legislature The starting point must always be to
consider the general meaning of the words in question in their context, not ignoring of
course that the context includes the presiding particular words…”. The judge was
satisfied that the certificate of competence is a document to which Section 3 of the act
relates because the common feature is a document covered by the provision in
question, because the common feature shared by a receipt and an account is that both
are associated with money and both relates to the keeping of records generally.

2. Expressio unius est exclusio alterius (what is not mentioned is absent) rule
 Literally means that whatever is omitted should be understood as being excluded, e.g. if a
statute provides for a specific sanction for non-compliance with its other sanctions being
excluded they cannot be applied. The maxim is based on the rationale that if the
legislature had intended to accommodate a particular remedy or allowance it would have
done so expressly, e.g. in the case of Ladysmelting Co. v. Richardson it was ruled that
the express mention of coal mines in the definition of lands excluded the possibility that
the word included mines of other minerals.

R v. Robinson 1975 (4) SA

Biedel AJ ruled that the power to demand information from council or an attorney
acting on behalf of a person did not exclude the power to demand such information
from the suspected person himself.

Thus it has been said that this maxim is a faithful servant but a dangerous master.

3. Noscitur a socii (words are chameleon like)

This maxim means that particular words are coloured by their association with other
words. A good example of the application of this maxim is found in the case of R v.
Greenland 1962 (1) SA 51 (SR) where the provision in question prohibited driving
“recklessly or negligently”. In that case the court had the task of trying to interpret the
two terms or the two words in such a manner as to give them different meanings. In the
end the court ruled that “only one offense of driving recklessly or negligently is
committed, this being so, it seems to me that this is the case where the maxim noscitur a
socii should be applied in interpreting the word recklessly”.

Another example is the case of Scales v. Pickering where the court was concerned with
the meaning of the word “footways” which appeared in the phrase “the soil and
pavements of roads, highways, footways, commons, sheets and lanes, passages and
public places”. The courts observed that construing the words footways from the
company in which it is found, the legislature is assumed to have meant paved footways in
large towns which are too narrow to accommodate wagons and horses.

4. Rendengo Singula Singalis (render each to its own)

This maxim is used to refer each phrase or expression to its appropriate object. The
maxim recognizes that the reader may properly infer a distributing relationship between
two juxtaposed series of ideas, e.g. teachers and students may form guilds and
associations (respectively)

5. Contemporonea expositio (focus on the principle of precedent)

This maxim refers to the extent which courts will have regard to their judicial decisions
in interpreting a statute. When interpreting a statute the courts does not approach it afresh
each time instead they are bound by precedent. Under English law the doctrine of stare
decisis is rigidly followed however, under Roman-Dutch law there is room for
development and the court may even depart from a previous decision which it considers
to be legally in error. An example is the case of R v. Silas 1959 (4) SA 305 where the
court found that due to an oversight there was conflict between the previous Appellate
Division decisions of R v. Banksbird 1952 (4) SA 512 and R v. Mazimbuko 1958 (4)
SA. The court decided to follow the Mazimbuko decision since it believed it to be the
legally correct decision.

The modern attitude of the judiciary towards the doctrine of precedent is reflected in the
dictum by Botha J, in the case of National Chem. Search v. Borrowman and Anor,
“In the field of precedence and stare decisis it used to be sad that a decision otherwise
binding could be departed from if a later court considered it to have been clearly wrong.
Nowadays the more usual way of expressing the requirement is that the later court must
be convinced that it was wrong. The words used in formulating the principle are not
important. What matters is the degree of error or the degree of conviction but the test to
be applied is incapable of exact definition. If functioning under a virile living system of
law, a judge must not be faint-hearted, and when he is morally convinced that justice
requires a departure from precedence he will not hesitate to do so, but on the other hand,
he guard carefully against being overboard in substituting his own opinion for those of
others lest there be too much chopping and uncertainty in the law. A mere difference of
opinion without more ought not to justify departure from precedence.”

As regards to the doctrine of precedence in Zimbabwe, Section 24 of the Supreme Court

Act, now expressly provides that the Supreme Court shall not be bound by its previous
judgements e.g. Magaya v. Magaya.

In 1981 the then Chief Justice of Zimbabwe Feldstein CJ issued a directive in which he
stated that “The court is conscious that it is important that there being a degree of
certainty upon which people cab rely in the conduct of their affairs. Precedent is an
important factor upon which to decide what the law is and how it is to be applied in
particular cases. It also serves as a proper staring point for any developments in the law.
Nevertheless, particularly in a changing society, it is essential that the court have some
flexibility so as not to restrict unduly its power to develop the law in proper cases to meet
changing conditions and injustice in particular cases. For the future, this court, while
treating its past decisions and those of its predecessors as normally binding, will depart
from previous decisions when it appears right to do so applying the general principles
accepted under our law.”
 The maxim also refers to the extent to which courts will have regards to long established
customs in interpreting a statute. In R.V Lloyd it was noted that although custom is said
to be the best interpreter, it should not dictate absolutely the construction of the statute,
but where a statute may fairly be interpreted in either of two ways, custom may well be
evoked to tip the balance. The situation was clarified by Innes CJ when he said that
custom cannot prevail on a plain and unambiguous meaning of a statute but where
language is open to two constructions, then the fact that it has been uniformly read in one
sense by those entrusted.

6. Statute in pari material (earlier judicial decisions are binding on statutes framed in
the same way as them)

If an Act of Parliament uses the same language which was used in a former Act of
Parliament referring to the same subject and with the same purpose and for the same
object, the safe and well known rule of construction is to assume that the legislature when
using well known words upon which there have been well known decisions uses those
words in the sense which the decisions have attached to them. Unless there is something
to rebut that presumption, the new statute is to be construed as the old one.

Wray & Wray v. Minister of the Interior 1973 (3) SA 554

The legislature had repealed Section 3 of a certain statute and replaced it using precisely
the same words of another statute. The court held that the legislature had intended to
adopt the Appellate Division’s construction on those words as given in the cases of
Union Government v. Fuckia 1923 AD 466 and Nara & Sam v. Principal
Immigration Officer 1922 AD 673.

Before this rule can be applied the previous judicial interpretation must be certain and
well recognized.

7. Cessante ratione legis cessat ipsa lex (reason is the spirit of the law)

The reason is the soul of the law and if the reason ceases to exist so does the law itself.
The maxim was applied in Green v. Gerald & Ors 1940 AD 88 where it was applied in
relation to the old rule prohibiting children born out of adulterous relationships from
inheriting from their parents. Solomon JA reasoned that these children were excluded
from inheriting from their parents because they were offspring of a criminal relationship.
If therefore adultery is no longer a criminal offense the reason for excluding them no
longer existed.

8. Generalia specialibus non derogant

This means that the specific overrides the general. If there are two apparently conflicting
provisions in a statute, one couched in general terms while the other providing for a
specific matter. The latter prevails.