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INTERPRETATION OF LAW

THEORETICAL FOUNDATIONS TO INTERPRETATION

- primary aids.
- use the given/established law.

Theories:

2.1 Text-based approach – Literal Rule of Interpretation; Golden Rule

of Interpretation
2.2 Text-in-context approach – Contextual Approach; Purposive
Approach (Mischief Rule of Interpretation)
2.3 The teleological approach
2.4 The historical approach
2.5 The comparative approach
2.6 The influence of the Constitution

2.1. TEXT-BASED APPROACH

- the predominance of the words are the primary manner of deciding the
intention of the legislature ie Union Government v Mack 1970 and Farrar’s Estate
v CIR 126 where the court held that the intention of the legislature should be
deduced from the words in the legislation.
- this principle is only the starting point of the interpretation process.
- the interpreter should concentrate primarily on the literal meaning of the provision
to be interpreted.
- if text is clear and unambiguous, effect should be given to it.
- the plain meaning should be applied and considered as the intention of the
legislature (literal rule). See Bhyat v Commissioner for Immigration 1932;
Swanepoel v Jhb City Council 1994 and more recently Commissioner, SARS v
Executor, Frith’s Estate 2001 where the court held that in order to arrive at the
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intention of the legislature the words must be given their ordinary grammatical
meaning unless to do so would lead to an absurdity that the Legislature could not
have contemplated
- if the plain meaning of the words is ambiguous, vague or misleading, or if a strict
literal interpretation would lead to absurdity, then the court may deviate from the
literal meaning to avoid such absurdity (golden rule).

a. The Literal Rule (also referred to as the Orthodox text-based approach)

 the court begins interpretation by applying the literal rule, i.e. the words of a
statute must be interpreted in their ordinary, grammatical meaning.
 originally based on English law in the case of De Villiers v Cape Divisional
Council 1875.
 in SA: doctrine of the separation of powers limited the role of the courts in
dealing with law.
 principle = words are to be understood according to their ordinary meaning.
 legislation should be interpreted in such a way that no word/sentence is
regarded as redundant/unnecessary.

Application of the literal rule

 The intention of the legislature should be deduced from the words used in the
legislation i.e. plain meaning of the word must be used as in the case of

Dadoo v Krugersdorp Municipal Council 1920 AD 530

Case facts – 1886 ordinance in Tvl prohibited 'Asiatics' from owning land in the
Tvl. Dadoo formed a company and bought land in the Tvl.

Held – that specific law aimed to prevent natural persons of particular racial
groups from owning land in the Tvl.
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 Crts will often refer to dictionaries to discover the 'ordinary' meaning of a word –

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

Case facts – S15 of the South African Citizen Act said that South African would
lose his or her nationality if s/he acquired a foreign nationality whilst outside RSA.
E was a sailor and had applied for British citizenship in order to secure better
employment.

Held – the word 'acquires' must be given its ordinary grammatical meaning. It
does not mean merely apply for citizenship, but this provision could only be
invoked once the foreign country had accepted the person as a citizen.

Qualification of literal rule

(1) where the plain meaning of the words are ambiguous, vague, misleading, or if
strict adherence to the literal rule may lead to absurd results, the court may
deviate from the literal rule to avoid the absurdity.

(2) Where an Act deals with a specific trade or business the words will be read in
their technical sense e.g. mouse, virus, arms, labour.

(3) If the language is deemed to be ambiguous the words must not only be given
their ordinary meaning, but also their contextual meaning as in the case of :

S v Kiley 1962 (3) SA 318 (T):

The clearer the language, the less likely court is to rely on context.

(4) The courts must give effect to each word used in the statute.

S v H 1986 (4) SA 1095 (T)

- H was prostitute. Charged with S20 of the Immorality Act – it is an offence:

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`for any person to knowingly live on the earnings of prostitution’

- Held: after reading all the words of the section, the section could only refer to
persons other than prostitutes.

►if it applied to her, the word ‘knowingly’ would be unnecessary.

► therefore could only apply to other persons who lived off such earnings

Criticisms of the literal rule/textual theory

a. Words do not have an intrinsic meaning in language – meaning is contextual.
Based on the assumption that some words have a clear and unambiguous
meaning.

b. Words are regarded as the primary index to legislative meaning.

c. Important internal and external aids are ignored. Context only used if text is not
clear.

d. Intention of the legislature is ultimately dependent on how clear the language

may be to a particular court.

e. Few texts are so clear that only one final interpretation is possible.

f. Text-based/textual theory approach leaves very little room for judicial law-
making – courts are regarded as mechanical interpreters of the laws.

g. Words acquire a particular meaning in the SA.

h. In SA, statutes are printed in 2 languages – increases the divergence of

dictionary meanings that can be attributed to a word.
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b. The Golden Rule

o applied where a literal interpretation may lead to absurdity, injustice or

inconsistency.
o modification of the literal rule, but wider.
o based on the distinction between language and ideas behind language.
o basis: court must give expression to the intention of the legislature.
o this is articulated as the golden rule.
o laws must be interpreted to reflect the intention of the legislature within the
context of Constitutional Supremacy.
o The Golden Rule involves a contextual interpretation of law.
o Matiso v Commanding Officer, Port Elizabeth Prison 1994 (4) SA 592 (SE)
597F
Held: 'The interpretive notion of ascertaining the 'intention of the Legislature'
does not apply in a system of judicial review based on the supremacy of the
Constitution, for the simple reason that the Constitution is sovereign and not the
Legislature. This means that both the purpose and method of statutory
interpretation should be different from what it was before the commencement of
the Constitution on 27 April 1994'.

- This means that the most important principle of statutory interpretation is to

ascertain and apply the purpose or object of the legislation in the light of the
BOR. This is the prevailing factor of this interpretation. Context must be taken
into account to establish purpose. All interpretation must be assessed and
qualified in the light of the supreme Constitution.

- The Golden Rule helps to overcome difficulties inherent in linguistic formalism.

- Established in Venter v R 1907 TS 910

Case facts – S3 of Transvaal Ordinance stated that 'any person convicted

outside the colony for specified offences was liable for certain penalties on
entering the colony.'
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Venter was convicted on theft in the colony of Orange River – served term and
returned to Transvaal where he was a resident. In Transvaal he was arrested
and sentenced to 1 month imprisonment.

Issue – whether section 3 applied to a person who was a resident in the colony.

Held – it was not the intention of the legislature to extend this rule to residents of
the colony.

Held: the context and such other considerations as a court is justified to take into
account may warrant a departure from legislative language in its literal
sense.

Held: the golden rule may be applied in interpretation.

Held: ordinary meaning of the words must be followed, unless this would
lead to absurdity, or is at variance with the intention of the legislature.

- Court held further that there were two different approaches to the golden rule :

(1) A Narrow Approach

Only where the language of a statute is ambiguous can the court construe it so
as to avoid absurdity;

Poswa v Member of the Executive Council for Economic Affairs,

Environment and Tourism, Eastern Cape 2001 (3) SA 582 (SCA)

Held: the cardinal rule of construction of a statute is to attempt to arrive at the

intention of the lawgiver from the language employed in the statute. The plain
meaning of its language must be adopted unless it leads to some
absurdity, inconsistency, or hardship.

(2) A Wider Approach

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Even if the words are unambiguous, the courts are to give effect to the true
intention of the legislature;

University of Cape Town v Cape Bar Council 1986 (4) SA 903

Held: the court has to examine all the contextual factors in ascertaining the
intention of the legislature, irrespective of whether or not the words of the
legislation are clear and unambiguous.

Farrar’s Estate v Commissioner of Inland Revenue 1926 TPD 501

Held: that the golden rule of interpretation is to attempt to ascertain the intention
of the lawmaker from the study of the provisions of the Act.

F died having shares in company in SA and London

Commissioner wanted to charge estate duty on the shares in London →Estate

Duty Act: estate duty was payable on all property owned by the deceased.

Held: that the intention of the Legislature was to charge estate duty only on those
shares held in SA

Held: that estate liable because the shares were registered in Johannesburg.

Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA)

Issue: whether the natural father of a child born out of wedlock was defined as a
‘parent’ in terms of s 1 and s 40(1) of the South African Schools Act 84 of 1996
for liability of child’s school fees.

Held: by interpreting the word ‘parent’ restrictively by utilising the literal meaning
of the word in the Act would not have been a true one and, if the Legislature
wanted to restrict liability for school fees solely to a custodian parent, it could
have done so by stating that in clear and unambiguous language. Therefore the
intention of the Legislature was to choose a meaning of expansive definition.
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How do we ascertain intention?

o normally from the words of the statute itself. Thus the words used by the
legislature are said to be its intention.
o 'intention of the legislature' can mean various things such as:
 the command of the law-giver;
 the ideas behind the written text; and
 the effect of the law.
o the 'intention of the legislature' plays a vital role in case law and Judges
pronounce the outcome of their interpretative insights in the following terms:
 the legislature clearly intended X;
 the intention of the legislature on a proper construction of the provision is
X.

S v De Abreu 1981 (1) SA 417 TPD

Case facts – S2 of the Arms and Ammunition Act: offence for any person to be in
possession of any firearm that is not duly licensed. A was a foreigner who was in
transit for a few hours at airport. He did not have a license for firearm.

Held: ordinary meaning of the words would lead to absurdity.

►intention of the legislature did not extend to such possession.

Cooper & Lybrand v Bryant 1995 (3) SA 761 (A)

The court affirmed the golden rule and held that: the words must be given
their ordinary grammatical meaning unless this would result in some
absurdity, repugnancy or inconsistency. In ascertaining the literal meaning,
the court must have regard to the context in which the word is used.
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Criticism of the golden rule

(1) The intention serves to reinforce literalism, thus undermining the context of the
words.
(2) This theory is a denial of the creative role that judges are expected to play.
(3) It leaves opens an interpretation whereby the intention of the legislature is
substituted with the judge’s own intention: it leaves open the possibility of
subjective considerations.
(4) The expression 'intention of the legislature' is in itself ambiguous both in meaning
and in application and can be used either in a narrow sense or in a broad sense.

It may refer to:

 the ideas underlying the language of the enactment;

 the will or thoughts of the legislators; or
 the purpose of the enactment.
(5) It is impossible to determine the minds of the legislators at the time of drafting the
law → the intention theory is a fiction. Botha outlines this as follows:

o intention denotes a subjective state of mind directed towards a specific result

which is inconceivable when it comes to all the members of a legislative body:
 the legislature is composed of a large number of persons;
 some of the members of this body usually oppose the legislation for
various reason which means that the result of the legislation only
reflects the 'intention' of the majority of the legislature;
 some members will support legislation for the sake of party unity;
 not all parliamentarians can be expected to understand complex
and highly specialized technical legislation;
 some members of the legislative body might be absent when voting
on a bill.
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► "intention of the legislature" refers to "the fictional collective intent of the majority
of the legislative body present at the time when the vote took place, expressing their
will within the constraints of the voting guidelines laid down by the caucus of the
ruling party in the legislature, and voting for draft legislation (formulated by legal
drafters on the advice of bureaucrats from a government department) which has
been approved earlier by the state law advisers."