Theoretical foundations of

interpretation
 The general principles of hermeneutics
 The understanding and explanation of texts to reveal their inherent meaning.
 Derived from the Greek word hermeneuein which means to interprete.
 Became a useful tool in both Christian theology and jurisprudence
 Biblical hermeneutics(scriptual exegesis) and legal hermeneutics (interpretation of
statutes) developed in history. Although they developed as separate fields they had a
lot in common.
 The tasks of Christian hermeneutics and legal hermeneutics are obviously comparable.
 In each case interpreter (courts or preacher) draws from a pre existing text the meaning and
applies it to a modern situation.
 Both have an existential urgency. i.e an importance to human existence.
 Author of the text is usually not immediately present.
 In both disciplines the interpreter deals with demands of changing situations and
circumstances.
 The interpretation of both the scripture and legislation are influenced by history.
 The general differences
 Legislation has its own rules.
 The biblical text is closed.
 Exegesies v hermeneutics
 Exegesies is process of examining a text to ascertain what its original readers
would have understood it to mean.
 Hermeneutics is that which the author wants to say to present day readers.
 Relevance of hermeneutics in the interpretation of legislation
 The intention as embodied in legislative text must be understood in terms of the
whole text and its parts.
 Part-whole approach signifies importance of the context of a specific phrase or
sentence.
The relationship between context and
interpretation
The influence of certain modern critical
theories

Theoretical approaches Schools of legal thought

 Textualism  Critical race and gender
 Purposivism  Law and literature
 Intentionalism/original intent  Feminist jurisprudence
theory  Law and economics
 Marxist theory of law
Post modernism

 Post modernism is not a school of thought but rather a spirit of the

times/condition/an intellectual style
 Rejects preconceived ideas, definitions and categories.
 They accept that everything is relative and defies a complete definition.
 They argue that utopian promises of the modern world view came to nothing.
 They reject the idea that classifications and categories can be final.
Critical legal studies movement (CLS)

 They argue that law is neither neutral nor value free.

 That law is a tool used by the establishment to maintain its power and
domination over an unequal status quo.
 Liberalism fails to solve social problems such as poverty, racism, pluralism
and oppression.
 Law and politics have merged.
 Courts play a vital role in the political role. The status quo is maintained by a
mechanical “his masters voice”.
Deconstruction

 Defies institutionalization.
 A reaction against structuralism which argues that the meaning of language
can be derived from its grammatical structure.
 Fundamentals of deconstruction
 Meaning depends not only on the differences between symbols (words) but also on the
continuous reference to other symbols in the system.
 Text is liberated from the author.
 Text has no fixed and final meaning.
 Different texts are in interpretation with each other.
 Context doesn’t have boundaries.
 Interpretation is not neutral and value free.
The linguistic turn
Du Plessis refers to the critical thinking about language, meaning and
interpretation as the “linguistic turn” and summarises it as follows
The linguistic turn – in interpretation, at any rate- amounts to this: meaning is
not discovered in a text, but is made in dealing with the text… [M]eaning is
never, at any given point in time, a fixed and stable presence…[T]he possibilities
for meaning are boundless. Language is the hyper-complex, boundlessly open
system that makes such a proliferation of meaning possible.
South
SouthAfrican
Africantheories
theoriesof
ofinterpretation
interpretation

The orthodox text based The text –in-context approach

approach

Words construed The context of the

according to their legislation is taken
grammatical meaning into consideration
The orthodox text based approach
Literal and grammatical meaning of text
Interpretation should proceed along the following lines
If the word is clear it should be applied and equated with the legislatures intention.
Principal Immigration Officer v Hawabu 1936 AD 26
If the plain meaning of the word is
Ambiguous, vague or misleading
Or would result in absurd results
Only then can the court deviate from the literal meaning. Venter v R 1907 TS 910 914
This is also known as the golden rule of interpretation
Then the court will turn to secondary aids of interpretation eg long title of the statute,
headings or chapters and sections, the text in other official languages.
Should the secondary aids prove insufficient courts have recourse to tertiary aids. These are
the common law presumptions.
Factors that led to the adoption of the textual approach
Misconceptions about the trias politica doctrine and sovereignty of parliament.
Doctrine of legal positivism
Englands common law tradition that legislation is an exception to common law.
English legislation was drafted to be as precise and detailed as possible.
Hence the well known maxim that the legislator has prescribed everything that it wishes to
prescribe.
 In South Africa the text based approach was introduced through De Villiers v Cape Divisional Council 1875 Buch 50.
 The text based approach generally means that words to be interpreted are accorded a literal grammatical meaning.
 Union Government v Mack and Farrar’s Estate v CIR 1926 TPD 501
 Ensor v Rensco Motors (pty)ltd 1981 (1) SA 815 (A)
 Swanepoel v Johannesburg City Council 1994 (3) SA 789 (A)
 Bhyat v Commissioner for Immigration 1932 AD 125 129
 Swanepoel v Johannesburg City Council 1994 (3) SA 789 (A) 794B
 Commissioner, SARS v Executor, Frith’s Estate 2001 (2)SA 261 SCA 273
 Criticisms of the textual approach
 Common law presumptions are a last resort
 The approach is narrow
 R v Hildick – Smith 1924 TPD 6881
 Other internal and external aids to interpretation are ignored.
 Few legislative texts are clear
 Leaves very little room for judicial discretion.
 Iudicis est ius dicere sed non dare
 Casus omissus rule
 Harris v Law society of the Cape of Good Hope 1917 CPD 449
 Unfortunately some of our courts still refer to this traditional approach
 Public Carriers Association v Toll Road Concessionaries (Pty) ltd 1990 (1)SA 925 (A) 934
 The text-in-context approach
 Purpose/object of legislation is the prevailing factor
 The search for the purpose of legislation requires a purpose oriented approach
 The purpose of legislation is the prevailing factor
 The contexts of legislation as well as social and policy directions are taken into account to establish the purpose of legislation.
 Inherent law making discretion
 Role of the court is flexible
 Not limited to mere mechanical and textual analysis
 Courts may modify initial meaning of text to harmonise it with the purpose of the legislation.
 The mischief rule is the basis of contextual interpretation
 Mischief rule acknowledges application of external aids
 Common law prior to the enactment of the legislation
 Defects in the law not provided for by the common law
 New remedies/solutions that the legislature provides
 And the true reasons for the remedies
 Provides a balance between grammatical interpretation and the overall contextual meaning right from the outset.
 The interpretation process cannot be complete until the purpose and the scope of the legislation(its contextual
environment) are taken into account.
The position in South Africa before 1994
 Statutory interpretation was in a gradual state of transition from the text
based approach towards a contextual approach.
 Schreiner in Jaga v Donges 1950 (4)SA 653
 All interpretive aids should be taken into consideration
 All intra- textual and extra –textual factors that may have a bearing on the statutes purpose .
 Unlike the textual approach there is no hierachy of tools.
 Contextual factors to be taken into consideration irrespective of how clear and unambiguous the
grammatical meaning is.
 Sometimes this wider context may be more important than the grammatical meaning of legislative
texts.
 University of Cape Town v Cape Bar Council 1986 (4) SA 903 (A)
The influence of the supreme
Constitution
 Legislation has to be interpreted in light of the Constitution
 Sec 35(3) of the interim Constitution and sec 39(2) of the 1996 Constitution both include an
express and mandatory interpretation provision.
 The constitution is the yardstick against which everything is viewed and reviewed.
 S v Makwanyane
 The interpretation of statutes was transformed by six provisions of the constitution
 Sec 1 (foundational provision)
 Sec 2(supremacy clause)
 Sec 7(obligation clause)
 Sec 8(application clause)
 Sec 36(limitation clause)
 Sec 39(interpretation clause)
 Sec 2 must be read with sec 7, sec 8(1),sec8(2) and sec 237 of the Constitution. When read
together it is undisputable that the Constitution is supreme and everything and everyone is
subject to it. It cannot be interpreted in light of the interpretation Act ,Roman Dutch Law or
customary law
 Holomisa v Argus Newspaper ltd 1996(2) SA 588
 Held that the constitution has changed the context of all legal thought and decision making in SA
 The interpretation clause sec 39(2) Constitution
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
 Constitution does not expressly prescribe a contextual and purposive approach
 Sec 39(2) is a peremptory provision. All courts, tribunals and forums must review legislation in light of
the Bill of Rights.
 interpreter is consulting extra textual factors
 Factors and circumstances outside the legislative text are immediately involved
 Interpretation starts with the constitution and not the legislative text
 Bato Star fishing (pty) Ltd v Minister of Environmental affairs and Tourism 2004 (4)SA 490(CC)
 Investigating Directorate : Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd : In re Hyundai
Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC)
 Constitutional values
 The supreme constitution is the yardstick against which everything is viewed
and reviewed
 It is underpinned by universally accepted values and norms.
 The preamble of the constitution refers to a society based on democratic
values, social justice and fundamental human Rights.
 Democratic values
 They are among others freedom, equality, advancement of Human Rights and
freedoms, non racialism and non sexism
 Courts are the guardians and enforcers of these values.
 In terms of the official oath of judicial officers (item 6(1) of schedule 2 of the constitution)
courts have to uphold and protect the constitution and the human rights in it.
The impact of constitutionalism
 A constitutional state is a state in which the constitution is supreme
 The constitution does not expressly refer to SA as a constitutional state. The
following provisions in the constitution imply that it is a constitutional state
 The preamble
 Sec 7
 Sec 1
 A constitutional state is underpinned by two foundations
 Formal one(includes aspects such as separation of powers,checks and balances on
government and the principle of legality.
 Material or substantive one (refers to a state bound by a system of fundamental values
such as justice and equality)
 S v Makwanyane para 262
 The constitution is a value laden document.
 Apart from the constitution these values are found in various sources
 Principles of international human rights law, foreign case law, ubuntu,our common law
heritage
 Qozeleni v Minister of Law and Order 1994(3)SA 625(E)
 However some courts in SA do not hold this view and continue to follow a literalist approach to
interpretation without reference to the supreme constitution.
 Kalla v The Master 1995 (1)SA 261(T)269
 Geyser v Msunduzi Municipality 2003 (5)SA 19(N)
 Masters sipaliteit 2003(4)SA 361(SCA)
Practical inclusive method of interpretation
Minister v Land Affairs v Slamdien 1999(4)BCLR 413(LCC)422

Teleological
Words and Structure and Historical Comparative
interpretatio
phrases context aspect aspect
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