1.

Interrelated dimensions of interpretation with reference to case law and the Constitution

There are five interrelated dimensions of interpretation, the five dimensions include the language;
holistic; value-laden; historical and comparative dimension. The five dimensions are important as it
serves as principles needed when the legislative is being interpreted throughout the interpretive
process. 1

1.1 Language Dimension

The first of the five interrelated dimensions is the ‘language dimension’ which focuses on how
language plays an important role in the legislative text, it emphasises on grammatical interpretation,
punctuation, sentence structure, and other structural elements of the text. Basic principles of the text
are taken into consideration, these basic principles considers the initial meaning of the text and to
understand the initial meaning of the text one has to start with the reading of the legislation
concerned, and when reading the legislation the interpreter should not try to contrive or exaggerate
the meaning of the text as it is necessary to give words their ordinary meaning unless it’s words
with a technical meaning that is different from the usual meaning.2

It should be understood that not every word in the text should have meaning as it is impossible for
the all words to carry a certain meaning every word in the text should have a meaning, because
there overlapping or repetition of words may be present in a legislation the repetition of words may
be done purposely as the drafter of the legislation might have wanted the reader to pay attention on
what is important, therefore the interpreter should take consideration of this in order to avoid
omitting anything important. Although every word does not need to be given a meaning every word
is surely important for example superfluous word, such words should be read together in order to
obtain the meaning of the legislation, as such words may help to give meaning to the other words
With understanding that all words are important comes the need for courts to not add or subtract
from the words used in the legislation3

The continuing time-frame of legislation also needs to be taken into consideration under the
language dimension, this rule entails that the legislation should not be interpreted narrowly but
rather interpreted in a flexible manner bearing in mind that the legislation has to promotes the spirit
and purports of the Bill of Rights however the values underpinning the constitution are not static,
therefore supreme law must be read in the context and conditions of the time when a case is heard,
not when legislation was established, since otherwise, society's progress and development will be
overlooked.4

The principle of internal language aids applies under the language dimension, it looks into
legislative text provided in another official language, where it happens that there are conflicting
versions between legislation in different languages the English text prevails, this is given effect by
section 240 of the Constitution. In case of irreconcilable conflicts between legislative texts, the
signed version prevails, and it is used as a last resort in case of a deadlock.5 6

1 Botha C. Statutory Interpretation: An Introduction for students(2012)(Pretoria): Juta (hereinafter Botha C).
2 Botha C 111-112.
3 Botha C 112-113.
4 Botha C 113-114.
5 Botha C 115.
6 Section 240 of The Constitution of South Africa, 1996(hereinafter The Constitution).
In case of a subordinate legislation, texts which are different should be read together because there
is no constitutional rules addressing the difference of language regarding subordinate legislation.
The court may declare the subordinate legislation invalid if the irreconcilable conflict leads to vague
or unclear legislation. New Acts being put into effect should be done so in English, where there is a
need to amend an existing Act that was published in both Afrikaans and English then the Act has to
be amended in both languages.7

If the text of the legislation brings about a confusing connotation, the preamble helps to give an
understanding on what is the intention of the legislation. Therefore, since the text should be
interpreted in light of its context, preambles can be used during drafting of legislation.8 In the case
of Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E) the application of the Constitution’s
preamble was acknowledged.9

The preamble is not the only factor which helps the reader to have a broad understanding of the
statute, other factors such as the long title, the definition clause and others helps the reader to have a
better understanding of the legislation. The long title deals with the subject matter of the statute, it
gives a short description on the subject matter in doing so it helps the reader understand the purpose
of the statute. Therefore to determine the topic/issue dealt with in a statute, the courts must refer to
its long title.10

The definition clause on the other hand helps the reader to be familiar with certain words, the
definition clause gives an explanation of words or phrases, enabling the reader to have a better
understanding of the statute while interpreting it. However the courts may deviate from the
meanings provided in the definition clause only if “the meaning is not the correct interpretation
within the context of the particular provision”.11

The express purpose clauses and interpretation guidelines are considered more valuable during the
interpretation process because it is more focused and has more details than the preamble and the
long title, but this does not mean that the preamble and the long title aren’t important. The express
purpose clauses and interpretation guidelines are more detailed as to what the purpose of the statute
is. The courts must refer to the purpose clause and the interpretation guidelines when wanting to
understand the purpose of the statute.12

The headings to chapters and sections can be seen as an introduction to the sections, with them
being used as introduction the reader may have an idea on what the purpose of the legislation is. In
the case of Chotabhai v Unions Government 1911 AD 24 it was provided that the headings may
only be used as an introduction only if the rest of the provision is not clear. 13

The section sof legislation are shortened and simplified in a schedule. In order to evaluate the
significance of a schedule during interpretation, the nature of the schedule, its relationship to the
rest of the legislation, and the language used in the legislation are all taken into account. Where the
schedule and a section are in conflict the section prevails.14

7 Botha C 117-118.
8 Botha C 118.
9 Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E).
10 Botha C 118.
11 Botha C 118.
12 Botha C 120.
13 Chotabhai v Unions Goverment 1911 AD 24.
14 Botha C 122.
As much as the principle of internal language aids needs to be considered, the external language
aids to interpretation also play a huge role in the interpretation process. External interpretation is the
using of dictionaries, examples and footnotes, definitions in the Constitution (Schedule 6 Item 3)
and s2 of the Interpretation Act, and computation of time which includes common-law
presumptions and the statutory method.15

1.2 Holistic Dimension

The second dimension is the holistic dimension, during the interpretation process this dimension
focuses on the intra-textual context and the extra-textual context. The intra-textual context provides
that the enactment must be read a whole including it’s structure while extra-textual context focuses
on the courts resting on existing law and other applicable contextual considerations just like how
the case of Independent Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and
Others 2020 (2) SA 325 (CC) looked into other statute(High Education Act) for the meaning of the
word ‘university16. This dimension emphasises that there should be a balance between the text and
the context because legislation cannot be constructed properly if the text and the context are
separated.17

1.3 Value-laden Dimension

The third dimension is the ‘value-laden dimension’ which is also known as the teleological
dimension. This dimension focuses on values which need to be taken into consideration when
interpreting legislation. It provides that the values of freedom, equality, human dignity, openness
and transparency, tolerance for differences in the process should be taken into account. Section
39(2) ensures that the interpretation of statutes is in accordance with such values which states that
interpretation of legislation has to be in line with the spirit, purport and object of the Bill of
Rights18. In the case of Coetzee v Government of the Republic of South Africa; Matiso v
Commissioner Officer, Port Elizabeth Prison 1995 (4) SA 631 (CC) it was provided that throughout
the process, the values that must prevail are drawn from a concept of an open and democratic
society founded on freedom and equality.19

1.4 Historical Dimension

The fourth dimension is the historical dimension, this dimension focuses on the preamble to the
Constitution, prior legislation, preceding discussion, the mischief rule, contemporonea expositio and
the subsecuta observatio. The preamble to the Constitution is used as an interpretive tool in
understanding our historical context. Prior legislation looks at repealed Acts, although some
portions of an Act are repealed, those provisions will no longer form part of an Act, but they still
have a bearing on the context in which the remaining provisions are interpreted.20

Preceding discussions contains the debates during the legislative process and the commission
reports. In the Westinghouse Brake and Equipment case 19856(2) SA 555 (A) it was provided that
the commission reports that precede passing of an Act may be used to establish the purpose of that
Act only if there is a clear link between the reports and the legislative provisions that are being
interpreted.21

15 Botha C 123.
16 Independent Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and Others 2020 (2) SA 325 (CC).
17 Botha C 128.
18 Section 39(2) of The Constitution.
19 Coetzee v Government of the Republic of South Africa; Matiso v Commissioner Officer, Port Elizabeth Prison 1995
(4) SA 631 (CC).
20 Botha C 148.
21 Westinghouse Brake and Equipment(Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A).
The mischief rule aims to examine the circumstances that led to the enactment of some legislation,
the mischief rule poses four questions to help establish the meaning of the legislation the questions
it asks is what was the legal situation before the legislation in question was introduced?; if any
problems were not properly addressed, what were they?; how does the new legislation propose to
fix the problem? And lastly why is it necessary to introduce these changes?22

Contemporanea expositio contains explanations of legislation by people involved in its adoption or

when it is first applied and explanatory memoranda issued by government departments or state law
advisor, the explanatory memorandum may help to determine the purpose of the legislation.
Subsecuta observatio deals with how the legislation has been interpreted by administrators over a
period of time. 23

1.5 Comparative Dimension

The last dimension is the comparative dimension, the legislation is compared with foreign law
or/and international law. In terms of foreign law the courts may use provisions from for example
English law provided that that legislation is the same as the one being interpreted and the
interpretation suggested by the other country is not in conflict with SA common-law principle or the
Constitution.

When it comes to international law section 233 of the Constitution acknowledges the use of
international law, the section provides that whenever interpreting legislation, courts must opt for
any reasonable interpretation that is consistent with international law over alternative interpretations
that do not.24 In South Africa, international agreements only become law when they are enacted by
national legislation this is in accordance with section 231 of the Constitution.25

2. Semantic and Jurisprudential guidelines

The courts have set guidelines which help in determining when a statutory provision is peremptory.
A peremptory provision is one that needs to be complied with in a manner which it is exactly
provided meaning that provision is mandatory or obligatory and therefore has to be complied with.
The guidelines used are semantic guidelines and jurisprudential guidelines.26

2.1 Semantic guidelines

Semantic guidelines developed by the courts include words or phrases which are commanding, such
words point out that the provision is indicative and that one has to act strictly in accordance with it.
The words used should give rise to an affirmative action, such as ‘must’ and ‘shall’, such words do
not give an opportunity to choose whether or not to do something rather they give an action of
demand.27

There are provisions which aren’t commanding in nature, these provisions are directory rather than
obligatory. Such provisions make use of words like ‘may’, it makes use of permissive words which
means that it cannot be interpreted as a demanding provision. It does not give rise to an action of
obligation rather it gives rise to an action which is optional hence the use of word such as ‘may’.28

22 Botha C 152.
23 Botha C 152-153.
24 Section 233 of the Constitution.
25 Section 231 of the Constitution.
26 Botha C 177.
27 Botha C 178.
28 Botha C 178.
With semantic guidelines it has to be considered whether the provision is in negative language or
positive language. Where a provision is in negative words, it indicates that it is obligatory and
where a provision has a positive language it gives the indication that it is directory, also when it is
used in vague or flexible terms it will be a directory provision.29

2.2 Jurisprudential guidelines

On the other hand jurisprudential guidelines, unlike the semantic guidelines refer to the
consequences that are likely to be caused by interpreting the provisions. In a case where there is no
consequence of a provision with positive terms, then that is an indication that the provision is
merely directory. The provision ends up being directory if complying with it will result in injustice
or fraud.30

Where a provision includes a consequence it is regarded that the provision is peremptory and in
certain instances the inclusion of a penalty clause may suggest that the legislature intended the
penalty to be sufficient and as such the act should not be declared null or void, but an act or conduct
should be declared null and void if its validity would defeat the purpose of the legislation.31

Using the semantic guidelines the provisions of section 8(2)(i)-(v) can either be directory or
peremptory. Starting with section 8(2)(i) it can be seen that the provision is peremptory because the
provision contains the word ‘must’ which is a command and it is not up to someone to obey the
provision, rather obeying the provision is more of an obligation. The provision provides that
everyone who has a valid Covid-19 vaccine passport must be allowed in public places.32

Section 8(2)(ii) makes use of the word “may”, the word may comes with an understanding that it is
up to the concerned person to follow the provision or not, it states that people with the concerned
passport may be inside or outside a public space under prescribed regulation, so it is actually up the
person as to whether they want to be inside or outside a public space. Therefore this provision is a
directory one.33

Section 8(2)(iii) is a peremptory provision as it makes use of the word ‘must’, giving rise to a
mandatory/ peremptory command. Section 8(2)(iv) has the word ‘may’ which is directory. Section 8
(2)(v) has the word ‘must’ which is peremptory and must be obeyed and followed as set out, while
section 8 (2)(iv) is more of an optional decision as it is a directory and contains the word ‘may’34

Therefore section 8(2)(i),(iii),and (v) are all mandatory/peremptory provisions as they all contain
the word ‘must’ which gives rise to a mandatory action. The use of the two words ‘may’ and ‘must’
help discern a mandatory provision from a directory provision. 35

29 Botha C 178.
30 Botha C 178.
31 Botha C 178.
32 Botha C 179.
33 Botha C 178.
34 Botha C 178.
35 Botha C 177-178.
REFERENCE LIST

South African Constitution., 1996.

Chotabhai v Unions Goverment 1911 AD 24.

Coetzee v Government of the Republic of South Africa; Matiso v Commissioner Officer, Port
Elizabeth Prison 1995 (4) SA 631 (CC).

Independent Institute of Education (Pty) Limited v KwaZulu-Natal Law Society and Others 2020 (2)
SA 325 (CC).

Qozeleni v Minister of Law and Order 1994 (3) SA 625 (E).

Westinghouse Brake and Equipment(Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A).

Botha C. Statutory Interpretation: An Introduction for students(2012)(Pretoria): Juta.