SECTION 15B – SIGNIFICANCE

Section15B is one of the most important provisions in the

Interpretation Act [Chapter 1:01] considering the historical
background regarding the issue of extrinsic material in interpreting
statutes. It provides for the use of extrinsic material thus broadening
the interpretive criteria, which the courts can now adopt.

Section 15B allows the courts to use extrinsic materials in a bid to

discover the meaning and intention of legislation. The courts were not
allowed to resort to these extrinsic materials in the past. These
external materials include legislative history and international
conventions among others.

Background of legislative history

Legislative history refers to all the processes preceding and leading up
to and the antecedents to an Act of Parliament. It consists of all the
relevant material that is generated during these processes. By
‘legislative’ it is meant to cover both the pre-Parliamentary materials
such as reports of committees and commissions of enquiry and the
Parliamentary process itself (Parliamentary debates, amendments in
its passage in Parliament and proceedings in committees).

Exclusionary rule:
Until 1993, English law firmly excluded legislative history as an aid to
statutory interpretation. Justification for the exclusionary rule was
given in the case of Miller v Taylor 1769 (4) Burr:
The sense and meaning of an Act of Parliament must be
collected from what it says when passed into law: and not from
the history of the changes it underwent in the house where it
took its rise. That history is not known to the other house, or to
the sovereign.

And in Fothergill v Monarch Airlines Ltd, it was said

“The Constitutional function performed by Courts of justice as
interpreters of the written law laid down in Acts of Parliament is
often described as ascertaining ‘the intention of Parliament’ but
what this metaphor, though convenient, omits to take into
account is that the Court, when acting in its interpretative role
… is doing so as mediator between the state in the exercise of
its legislative power and the private citizen for whom the law
made by Parliament constitutes a rule binding upon him and
 enforceable by the executive power of the state. Elementary
justice … demands that the rules by which the citizen is to be
bound should be ascertainable by him (or more realistically by a
competent lawyer advising him) by reference to identifiable
sources that are publicly accessible. The source to which
Parliament must have intended the citizen to refer is the
language of the Act itself………….. If the meaning of those words
is clear and unambiguous and does not lead to a result that is
manifestly absurd or unreasonable, it would be a confidence
trick by Parliament and destructive of all legal certainty if the
private citizen could not rely upon that meaning but was
required to search through all that had happened before and in
the course of the legislative process in order to see whether
there was anything to be found from which it could be inferred
that Parliament’s real intention had not been accurately
expressed by the actual words that Parliament had adopted to
communicate it to those affected by the legislation.

Reasons for the exclusionary rule (as stated by Benion)

 It would be contrary to principle to allow reference to
proceedings in Parliament.
 What is said in one House is not known to the other House or to
the Sovereign.
 Allowing such reference would contravene the parole evidence
rule.
 Allowing such reference might contravene Parliamentary
privilege.
 Allowing such reference would breach the comity that should
exist between the Courts and Parliament.
 Allowing such reference would create difficulties for
practitioners.
 Allowing such reference would add to costs.
 Parliamentary material is untrustworthy.
 Allowing such reference would tend to undermine the reliability
of the statute book

By 1978 however, there was growing dissatisfaction with the exclusionary

rule as seen in the case of Davis v Johnson [1978] 2 WLR 553 were Lord
Denning, in interpreting the provisions of the Domestic Violence and
Matrimonial Proceedings Act 1976, resorted to the Hansard, stating, that
not to do so would be like 'groping in the dark without switching on the light'.
On appeal to the House of Lords the Lords (emotionally) reprimanded
Denning for referring to the Hansard and restated the rule that Hansard
must not be referred to. Each of them gave their reasons as set out below.

Lord Kilbrandon- “It has always been a well-established and salutary rule
that Hansard can never be referred to by counsel in Court and therefore can
never be relied on by the Court in construing a statute or for any other
purpose."

Lord Scraman -"There are two good reasons why the Courts should refuse to
have regard to what is said in Parliament or by Ministers as aids to the
interpretation of a statute. First, such material is an unreliable guide to the
meaning of what is enacted. It promotes confusion, not clarity. The cut and
thrust of debate and the pressures of executive responsibility, essential
features of open and responsible government, are not always conducive to a
clear and unbiased explanation of the meaning of statutory language. And
the volume of Parliamentary and ministerial utterances can confuse by its
very size. Secondly, counsel are not permitted to refer to Hansard in
argument. So long as this rule is maintained by Parliament (it is not the
creation of the judges), it must be wrong for the judge to make any judicial
use of proceedings in Parliament for the purpose of interpreting statutes."

Lord Dilhorne –“While, of course, anyone can look at Hansard, I venture to

think that it would be improper for a judge to do so before arriving at his
decision and before this case I have never known that done. It cannot be
right that a judicial decision should be affected by matter which a judge has
seen but to which counsel could not refer and on which counsel had no
opportunity to comment."

14 years later, in the case of Pepper v Hart [1992] 3 WLR 1032 The House
of Lords had to decide whether a teacher at a private school had to pay tax
on the perk he received in the form of reduced school fees. The teacher’s son
went to the same private school that he taught and the school had reduced
the school fees payable by him as a perk. The teacher sought to rely upon a
statement in Hansard made at the time the Finance Act was passed in
which the minister gave his exact circumstance as being where tax would
not be payable. The House of Lords departed from Davis v Johnson and took
a purposive approach to interpretation holding that Hansard may be
referred to and the teacher was not required to pay tax on the perk he
received.

Lord Griffiths commented that:

The days have passed when the Courts adopted a literal approach.
The Courts use a purposive approach, which seeks to give effect to the
 purpose of legislation and are prepared to look at much extraneous
material that bears upon the background against which the legislation
was enacted."

And Lord Brown Wilkinson said:

My Lords, I have come to the conclusion that, as a matter of law,
there are sound reasons for making a limited modification to the
existing rule (subject to strict safeguards) unless there are
Constitutional or practical reasons which outweigh them. In my
judgment, subject to the questions of the privileges of the House of
Commons, reference to Parliamentary material should be permitted as
an aid to the construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to an absurdity. Even in
such cases references in Court to Parliamentary material should only
be permitted where such material clearly discloses the mischief aimed
at or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present
advised I cannot foresee that any statement other than the statement
of the Minister or other promoter of the Bill is likely to meet these
criteria.

In the UK, the ruling was met with anxiety and scepticism. It was feared
that the ruling would lead to a situation where the law would no longer be
certain and where litigation costs would become exorbitant due to more time
being spent in legal research into Parliamentary archives. Happily, since the
ruling, these fears have not been borne out.

The ruling was followed in Zimbabwe in several cases, most notably in

Tsvangirayi V Registrar General SC 12/02 the court made reference to
hansard. The court quoted the statement made by Mr Walker the promoter
of the bill during the second reading that a person should be a citizen before
being entitled to vote

In Quinnel v Minister of Lands and Others SC-47-04 the applicant

challenged the validity of the Land Acquisition Act. Reference was made to
the passage of the bill in parliament and how it had surpassed the other bill
of General Laws Amendment Bill which was of like nature with it.

.
In 2003, the Zimbabwean Parliament amended the Interpretation Act to
incorporate section 15B which permits the use of legislative history in the
interpretation of statutes. In crafting section 15B however, the legislature
was careful to include provision that would safeguard the process of
litigation from becoming unduly burdened by unbridled resort to extrinsic
material.

First, section 15B(1) provides that extrinsic material can be resorted to only
for the purpose of confirming that the meaning of the provision is the
ordinary meaning conveyed by the text of the provision taking into account
its context in the enactment and the purpose or object underlying the
enactment; or determining the meaning of the provision when
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking
into account its context in the enactment and the purpose or object
underlying the enactment leads to a result that is manifestly absurd
or unreasonable.

Secondly, section 15B(3) provides that the Court has a discretion whether or
not to allow the use of any extrinsic material by having regard to the
desirability of persons being able to rely on the ordinary meaning conveyed
by the text of the provision taking into account its context in the enactment
and the purpose or object underlying the enactment; and the need to avoid
prolonging legal or other proceedings without compensating advantage.

Section 15B(3) shows that the court has a discretion to allow parties to
resort to extrinsic material. The court will have to weigh the desirability of
resorting to extrinsic aid viz a vis the need to avoid prolonged litigation. So
the Act covered some of the fears which where pointed out by Bennion, as
problem which arise from use of extrinsic aid.

In light of the above section 15B also codifies rules of interpretation. It

suppresses the long believed norm or argument that departure from literal
rule amounts to usurpation of the legislative function. Courts can depart
from ordinary meaning in search of other interpretive criteria that would
result in reaching the intention of the legislature and the purpose
underlying an enactment by referring to the legislative history.

Use of International law

-Section 15B(2)(d) allows reference to international conventions or treaties
as a way of coming up with the intention of the legislature. Courts were
reluctant to use because it does not form part of the domestic laws.
However, section 15B allows the court to make reference to international law
for the purpose of confirming that the meaning of the provision is the
ordinary meaning conveyed by the text of the provision taking into account
its context in the enactment and the purpose or object underlying the
enactment; or determining the meaning of the provision when
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking
into account its context in the enactment and the purpose or object
underlying the enactment leads to a result that is manifestly absurd
or unreasonable.
This position is further buttressed in the Constitution section 326(2) and
327(6).
Courts referred to international law in the following cases among others;

-In Simon Francis Mann V The Government of Equatorial Guinea, the

customary international law principle of non refoulment was used to
interpret the obligations of the state to accused persons under the
Extradition Act
-In Mildred Mapingure V Minister of Home Affairs and Anor. The
Convention on the Elimination of all forms of Discrimination Against Women
(CEDAW) was used to determine the scope of obligations of public service
providers under the termination of pregnancy Act
-In Tsopodzi&Anor. V Minister of Justice, Legal and Parliamentary
Affairs and Anor. The Convention on the Rights of the Child and the
African Union Convention of the Rights and Welfare of the African Child
were used to buttress the ruling that the marriage of people under the age of
18 was unconstitutional

Use of headings, notes, tables and indexes

-Section 15B(2)(a) further allows the courts to make reference to headings,
notes, tables and indexes. In terms of section 7 of the Interpretation Act
[Chapter 1:01], headings, notes, tables and indexes, do not form part of a
statute. Hence, courts were reluctant to make use of them since they are
regarded as not forming part of statute, though some courts considered
them.

In the case of Chotobai v Union Government 1911 AD 13, De Villers said

that headings of different portions of a statute may be referred to for the
purpose of determining the sense of any doubtful expression.

In Turffontein Estates v Mining Commissioner, Johannesburg court

stated that where the intention of the law giver as expressed in any
particular clause is quite clear, then it cannot be overridden by the words of
a heading but where the intention is doubtful then the heading may become
of importance