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What is statue law? How does statute law create legally binding rules? What does it
look like? What are its purposes? How does it develop? Who are the actors involved
in the shaping it? How does it relate with other sources of law?
Statute law may also be referred to as legislation or enactments. Statute law is the
generic term used to refer to the Acts of Parliament. The term includes subsidiary /
subordinate and delegated legislation. It should however be noted that not all Acts of
Parliament will end up in the statute books. Amendments to existing legislation are
effected through legislation known as “amending Acts” but, ordinarily, these
amending Acts do not enjoy an independent existence beyond the legislative
process. They are immediately absorbed into the principal legislation, modifying the
amended portions of the statute. Thus, for example, one does not ordinarily refer to
provisions of the Electoral Amendment Act [Act No. 3 of 2012] but to the Electoral
Act [Chapter 2:13], as amended.
From this definition, we get several ideas about the nature of statute law which play
a role in the interpretation of the statute:
There are several sources of law in Zimbabwe: the Constitution, statute law,
common law, African customary law and international law. These sources are not
equal and it is possible to discern a hierarchy. The position of statute law in this
hierarchy has an influence on the interpretation of statutes.
Section 2 of the Constitution provides that the Constitution is the Supreme Law of
the land. What this means is that the Constitution is the most important law in the
country. It is the standard against which the validity of all other laws in the country
will be tested. The Constitution itself is a special type of statute but strictly speaking,
it is referred to as a suis generis document, or a document that is of its own kind.
Section 192 of the Constitution provides that the law to be administered in Zimbabwe
is the law that was in force at the effective date as subsequently modified. The law
that was in force at the effective date is the law that was provided for under section
89 of the Lancaster House constitution. Section 192 understood in light of section
891 of the previous Constitution and read with section 2, therefore establishes the
following hierarchy of laws:
1
Section 89 of the Lancaster House Constitution provided: “Subject to the provisions of any law for the time
being in force in Zimbabwe relating to the application of African customary law, the law to be administered by
the Supreme Court, the High Court and by any courts in Zimbabwe subordinate to the High Court shall be the
law in force in the Colony of the Cape of Good Hope on 10th June, 1891, ……..” This law consists mainly of the
Currently there are about 400 statutes in Zimbabwe, dealing with a wide range of
issues. All statutes deal with issues of either public law, private law or procedural
law. Public law consists of legal rules that seek to regulate the relationship between
the individual and the state or between or among public institutions. Examples of
statutes dealing with public law matters are the Administrative Justice Act [CAP 10:
28] and the Police Act [CAP 11:10]. Private law consists of legal rules which regulate
the relationship between or among private individuals. Examples of statutes dealing
with issues of private law are the Marriage Act [CAP 5:11] and the Insurance Act
[CAP 24:07]. Procedural law consists of rules that govern the process of bringing
legal disputes for adjudication before the courts. Examples of statutes dealing with
procedural law matters are the Supreme Court Act [CAP 7:13] and the Magistrates
Court Act [CAP 7:10]. This classification is not very helpful because in most cases,
one finds elements of all classifications of law in one statute.
Zimbabwean statutes are classified under 29 titles or chapters that group together
the statutes that deal with similar matters. For example, statutes dealing with
defense, security and public order matters are found in title 11 while those dealing
with matters to do with the President and Parliament are found in title 2. These
classifications are for convenience and reference purposes only and no special
significance should be read into them for purposes of interpretation.
Roman Dutch common law as interpreted by the South African courts and the elements of English Law that
had been incorporated into the South African legal system as at the indicated date.
2
The discussion in this paper is limited to the making of laws emanating from public bills and does not include
private members bills
PURPOSE EXAMPLE
To create the legal rules in a new field of Carriage by Air Act [CAP 13:04]
human activity
To create rules regulating conduct in a Betting and Totalizator Control Act [CAP
pre-existing field of human activity 10:02]
To prohibit and punish certain conduct Chemical Weapons (Prohibition) Act
[CAP 11:18]
To promote and reward certain conduct
To constitute public institutions University of Zimbabwe Act [CAP 11:10]
To raise revenue Customs and Excise Act [CAP 23:02]
To appropriate revenue Appropriation Act
To establish the legal procedures for how Shop Licences Act, [CAP 14:17], the
certain acts should be carried out Arbitration Act [CAP 7:15]
To alter / repeal existing statute law The Environmental Management Act
[CAP 20:27], repeals the Natural
Resources Act
To alter the common law The Contractual Penalties Act [CAP 8:04]
To delineate space and regulate its use Protected Places and Areas Act
To appoint pubic officers and confer Justices of the Peace and
special powers on them Commissioners of Oaths Act
To codify the common law The Companies Act [CAP 24:03]
To codify African customary law The Traditional Leaders Act [CAP 29:17]
3
It must be understood that although the President is part of the legislature he does not exercise primary law
making powers. His role is limited to assenting to bills that have been passed by Parliament.
4
Sections 130 – 134 of the Constitution
5
Standing Orders 103 – 153 of the House of Assembly Standing Orders (2005).
There are several important processes and actors in the development of a statute,
and these fall under three distinct stages, namely, pre-parliamentary, parliamentary
and post parliamentary stages. The processes and actors in each of these stages
are briefly described below. The different actors are underlined for easy
identification:
Statutes are basically the legal expression of public policy. All statutes therefore start
with policy formulation. A policy position is developed by the relevant Minister as a
response to a need or a challenge encountered in administering the activities in a
particular sector. For example the Minister of Health may formulate a policy to
prioritize infant nutrition in response to the challenge of infant malnutrition and
consequent high infant mortality rate. The Ministry may develop this policy out of its
own initiative or in response to lobby and advocacy activities by civil society groups.
The media may have also played a part by publishing stories on infant deaths related
to malnutrition, thereby raising the issue to the public fore. The Ministry may have
also consulted the public through a white paper, prior to formulating the policy. It may
also be that the new policy is based on the recommendations of the Law
Development Commission6.
The new policy may have been influenced by Parliament itself in the exercise of its
oversight function. For example, a Committee of Parliament may have conducted a
visit on prisons and identified and reported on certain weaknesses in the prison
management system, together with recommendations. These recommendations may
then have formed the basis for a policy on prison reform.
All proposed policies must be approved by Cabinet. When cabinet approval has
been obtained, the Minister will prepare a memorandum of principles setting out the
6
The Law Development Commission is an institution set up by the Law Development Commission Act [CAP
1:02] to promote the development and reform of the Law in Zimbabwe.
Parliamentary Stage
Once the memorandum of principles has been approved by Cabinet, The Attorney
General’s Office will draft the bill in accordance with the principles. The final version
of the draft bill must be approved by the client Ministry. Once it has been approved
by the Ministry, the bill is then introduced to Parliament for the ordinary stages in the
legislative process including the following: First reading, referral to the Parliamentary
Legal Committee7, second reading and committee stage, third reading, referral to the
other House and finally, referral to the President for Presidential assent
The actors at this stage are the parliamentarians themselves who must debate on
the bill and vote on it at its various stages. The relevant portfolio committee should
play a leading role by subjecting the bill to more rigorous scrutiny than any other
committee and lead the debates during the Committee of the whole house. The
portfolio committee is also expected to submit a report on the bill at the second
reading stage.
Other important players during the parliamentary stage are the parliamentary
secretariat, civil society organizations and the office of the Attorney General. The
secretariat of Parliament, particularly the committee clerks and the researchers play
a crucial role in research, documentation and custody of the discussions around the
Bill and facilitation of communication between Parliamentarians and external
stakeholders. Civil society organizations may also attempt to influence the outcome
of the bill through lobby and advocacy activities. Finally, the office of the Attorney
General is responsible for redrafting the bill to incorporate any amendments agreed
upon.
Post-parliamentary Stages
7
The Parliamentary Legal Committee is set up in terms of section 40A of the Constitution to examine all bills
and amendments to bills and report to Parliament on whether in the opinion of the committee the bill
contains any provisions which are in violation of the Declaration of Rights or any other provision of the
Constitution. It also examines statutory instruments and draft statutory instruments.
When the bill has been assented to, the Clerk of Parliament is required to send a
certified copy to the High Court for enrollment8 and to the Government Printer for
publication in the Gazette. Generally, a bill becomes law upon its publication in the
Gazette9. It is thereafter assigned a place in one of the chapters of the statute books,
depending on its subject matter.
The President is the authority that assigns the Minister to administer any particular
statute.
The making of a statute ends formally with the promulgation of the Act of Parliament.
A law duly promulgated (or portions of it), may however be struck down by the
Supreme Court if it is found to be unconstitutional.
Legislative History
It should be noted that various documents are generated at each stage of the
legislative process. Some of these documents have value in the interpretation of
statutes as we shall see in a later part of the study when we look at external aids to
interpretation.
STAGE MATERIAL
Pre parliamentary Policy statements
Reports of the Law develop
Commission
Reports of Commissions of inquiry
Memorandum of principles
Instructions to the AG’s office
8
Section 53 of the Constitution
9
Section 51(5) of the Constitution
The meaning of the term “statute” encompasses both the Act of Parliament and any
subsidiary legislation made under it10. Subsidiary legislation also known as delegated
or subordinate legislation is law which is made by other authorities other than
Parliament in terms of legislative powers delegated to that authority by Parliament.
Section 32 of the Constitution permits Parliament to delegate its law making
functions to “any person or authority”. Typically, Parliament will concern itself with
the general framework and scheme of the statute and leave the details to be dealt
with in regulations made by the responsible Minister.
Scope of Delegation
When passing subsidiary legislation, the Minister or other delegate must act strictly
within the confines of his delegated powers. The scope of these powers is set out in
the enabling provision of the principle legislation. Any provision in a subsidiary
legislation, which is in excess of his delegated powers is said to be ultra vires the
10
See the definition of “enactment” given in section 2 of the Interpretation Act [CAP 1:01].
There are certain powers which, because of their far reaching consequences on
personal liberties and on the fiscus, Parliament will not readily delegate. These
powers include the power to raise taxes, to create offences and to pass laws that
have retrospective effect. The intention to delegate these powers can therefore
never be implied or inferred; there must be an express provision in the principle
legislation.
Advantages:
a. Saves Parliamentary Time – The sitting times of Parliament are quite limited.
That time is best utilized in the consideration of the broader policy
considerations in the bill and leaving the details to be taken care of by
members of the executive because unlike Parliament, ministries work
continuously and are not subject to the time limits imposed by the lengths of
sittings and sessions. Further, the making of delegated legislation does not
entail the lengthy process that bills are subjected to.
feature Always
Short title
Long title
preamble
Definition into sections
Demarcations into parts (e.g Criminal Law
Codification and reform Act)
Demarcations into Chapters
Sections and their components
- Subsections
- Paragraphs
- Subparagraphs
Schedule
Punctuation
Cases
1978 (England) - Register' Stock V Frank Jones (Tipton) Ltd 1978 1. WLR 231
Venter v Rex 1907 TS 910
Re Sigsworth [1935] 1 Ch 98 –
Stellenbosch Farmers’ Winery Ltd v Distillers Corp (SA) Ltd: 1962 (1) SA 458 (AD)
Statutory interpretation deals with the body of rules and principles used to
construct and justify the meaning of legislative provisions to be applied in practical
situations.
“In the courts of Britain and South Africa it has often been said that if the intention
of the legislature is clearly expressed, there is no need for any rules of
construction and that principles of interpretation are intended …. As aids to
resolving any doubts as to the legislature’s true intentions.
The intention of the legislature is a common but slippery phrase, which popularly
understood may signify anything from intention embodied in positive enactment
to speculative opinion as to what the legislature probably would have meant,
although there is an omission to enact it ….what the legislature intended to be
done or not to be done can only be legitimately ascertained from that which it has
chosen to enact, either in express words or by reasonable and necessary
implication
Usually statutory provisions are very clear. They mean what they say. In some
cases however there is doubt as to the meaning and doubt can arise under a
variety of situations including the following:
- Obscurity – use of the word whose meaning is not obvious or precise e.g. sec
106 of the Public Health Act No person shall cause a nuisance, or shall suffer
to exist on any land or premises owned or occupied by him, or of which he is
in charge, any nuisance or other condition liable to be injurious or dangerous
to health. What is a nuisance?
- Lack of clarity in the language used e.g. section 1 of the Orange Free State
Ordinance 10 of 1977 “ in this ordinance unless the context otherwise
indicates, -
“Disaster” means a disaster or a state of emergency or a state of
disaster and which, in the opinion of the administrator or of the
- The outcome emanating from what might at first appear to be the correct
meaning is unsatisfactory or undesirable. e.g.
“ No one shall carry any dangerous weapon upon a public
highway except for the purpose of killing a wild animal, or a
policeman in the execution of his duty!”
- Where there appears to be a gap or an omission in the legislation, (casus
omissus), interpretation may be required to fill the gap.
The most often stated object of the rules of interpretation is to ascertain the legal
meaning of the provision under consideration. This is the intention that Parliament is
deemed to have intended. It is not permissible to call Parliamentarians to give
evidence in court as to what exactly they intended when they enacted a particular
law. First there is the problem of who to call some statutes were enacted in 1924. All
the Parliamentarians were involved in the making of that law are dead! Then there is
the principle of separation of powers which precludes encroachment by the
legislature into the judicial sphere of legal interpretation.
Neither is it permissible to call the draftsman to explain what exactly he meant to say
( if he is even still available). The intention of Parliament must therefore always be
gleaned from the language of the statute. The language is always the starting point
in interpretation.
2.4 What are the rules of interpretation and where do they come from?
Study Unit 3
Common law Approaches to interpretation
There are two main traditional approaches used by the judges to interpret legislation:
the text based approaches
This can be equated to the literal approach of interpretation, incorporating the literal
rule, the golden rule and the mischief rule
This approach has its origins in English law traditions. It has developed over the
years. According to this approach, the interpreter should concentrate primarily on the
"If the words of an Act are clear then you must follow them even if they
lead to a manifest absurdity. The court has nothing to do with the question
whether the legislature has committed an absurdity.
“It is the primary rule of interpretation that, if the meaning of the text is clear, it
should be applied, and indeed equated with the legislature’s intention”
Whitely v chapel,
Lee v Knapp.
Over the years however, Acceptance has grown that it is permissible to depart from
the literal meaning of the provisions in those cases where the outcome achieved by
strict literalism would lead to clearly unsatisfactory outcomes. The following dictum of
Stratford JA in Bhyat v Commissioner for immigration is probably the classic
formulation of the current orthodox text based method of interpretation:
The exceptions to the strict the literalist approach described by Lord Esher in 1892
and developed over the years have come to be known under two distinct headings:
The golden rule and
The mischief rule
The golden rule: The essence of the Golden Rule is that the starting point to
interpretation is the literal meaning, but this is subject to the
consequences. If the consequences lead to a glaring absurdity
or to a result so outrageous that the legislature could not have
intended it, the literal meaning must be abandoned in favour of
some other meaning that the court will arrive at by employing
other aids to interpretation.
1836 ( England) - The rule is usually based Becke v Smith (1836) 2 M&W 195
per Justice Parke (later Lord Wensleydale), which states:
“It is a very useful rule in the construction of a statute to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that
is at variance with the intention of the legislature to be collected from the
statute itself, or leads to any manifest absurdity or repugnance, in which case
the language may be varied or modified so as to avoid such inconvenience
but no further.”
“In construing statutes, and all written instruments, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to
some absurdity or inconsistency with the rest of the instrument, in which case
the grammatical and ordinary sense of the words may be modified, so as to
avoid that absurdity or inconsistency, but not farther.
“we are to take the whole of the statute together and construe it altogether, giving the
words their ordinary signification, unless when so applied they produce an
inconsistency, or an absurdity, or inconvenience, so great as to convince the court
that the intention could not have been to use them in their ordinary signification, and
to justify the court in putting on them some other signification, which, though less
proper, is one which the court thinks the words will bear.’
1978 (England) - Register' Stock V Frank Jones (Tipton) Ltd 1978 1. WLR 231
With time, the rule continues to become more refined and therefore to be a more
precise and effective tool for the courts. More than a century after Grey v. Pearson, a
court added this caveat: "Nowadays we should add to 'natural and ordinary meaning'
the words 'in their context and according to the appropriate linguistic use.
In South Africa, the circumstances in which a court will would be justified in departing
from the clear and unambiguous meaning of the section to avoid what the
respondent categorised as a manifest absurdity do so were stated by Innes CJ in
Venter v Rex 1907 TS 910 at 914-915 to be –
‘when to give the plain words of the statute their ordinary meaning would lead
to absurdity so glaring that it could never have been contemplated by the
legislature, or where it would lead to a result contrary to the intention of the
legislature, as shown by the context or by such other considerations as the
Court is justified in taking into account . . . .’
Narrow approach:
R v Allen (1872) LR 1 CCR 367 - The defendant was charged with the offence of
bigamy under s.57 of the Offences against the Person Act 1861. The statute states
'whosoever being married shall marry any other person during the lifetime of the
former husband or wife is guilty of an offence'.
The Absurdity was that under a literal interpretation of this section the offence would
be impossible to commit since civil law will not recognise a second marriage. Any
attempt to marry in such circumstances would not be recognised as a valid marriage.
The court applied the golden rule and held that the word 'marry' should be
interpreted as 'to go through a marriage ceremony'. And so the defendant's
conviction was upheld.
Wide approach:
Adler v George (1964) - The defendant was charged under the Official Secrets Act
1920 with obstructing a member of armed forces ‘in the vicinity of a prohibited place.’
The defendant argued that he was actually in the prohibited place, not in the vicinity
of it, that is, near to it. Had the court applied this literal interpretation of the phrase
the defendant would not have been guilty. The court therefore interpreted the phrase
‘in the vicinity of’ to include ‘in’ a prohibited place to avoid absurd result.
The mischief rule: It is permissible to depart from the literal meaning of words if the
outcome achieved does not result in addressing the mischief
that parliament was clearly targeting.
The rule was first set out in Heydon's Case [1584]3 CO REP 7 where the.
Court ruled that there were four points to be taken into consideration when
interpreting a statute:
“ For the sure and true interpretation of all statutes in general (be they penal or
beneficial, restrictive or enlarging of the common law), four things are to be
discerned and considered:
1. What was the common law before the making of the Act?
2. What was the mischief and defect for which the common law did not
provide?
3. What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth. And,
4. The true reason of the remedy; & The core principle of the last of is. 'and
then the office of all the judges is always to make such construction as
The defendants were prostitutes who had been charged under the Street Offences
Act 1959 which made it an offence to solicit in a public place. The prostitutes were
soliciting from private premises in windows or on balconies so could be seen by the
public.
The court applied the mischief rule holding that the activities of the defendants were
within the mischief the Act was aimed at even though under a literal interpretation
they would be in a private place.
The Royal College of Nursing brought an action challenging the legality of the
involvement of nurses in carrying out abortions. The Offences against the Person Act
1861 makes it an offence for any person to carry out an abortion. The Abortion Act
1967 provided that it would be an absolute defence for a medically registered
practitioner (ie a doctor) to carry out abortions provided certain conditions were
satisfied. Advances in medical science meant surgical abortions were largely
replaced with hormonal abortions and it was common for these to be administered
by nurses.
The court held that it was legal for nurses to carry out such abortions. The Act was
aimed at doing away with back street abortions where no medical care was
available. The actions of the nurses were therefore outside the mischief of the Act of
1861 and within the contemplate defence in the 1967 Act.
- Words can be given their technical meanings when used a technical statute.
This was succinctly explained by Beadle CJ in Lonrho Ltd v Salisbury
Municipality in the following words:
“ When, in a technical statute like a patent statute, the legislature uses words
which for some 300 years have been recognized as having a specialised
technical meaning, it must be assumed that the legislature intended to use the
words in their recognized technical sense and not in their popular sense,
unless, of course it appears from the context in which the words are used that
the legislature intended to depart from the proper technical meaning.”
Hiding behind the theory of separation of powers, the courts Hiding behind the theory
of separation of powers, the courts are extremely reluctant to fill gaps, arguing that
this is the prerogative of the legislature. However, in a narrowly defined set of
circumstances, albeit in an inconsistent fashion, they have supplied missing words.
In S v Mpofu, the court held that it would supply the missing words in a statute if
there was clear evidence that the omission was a direct result of a printing error.
Similarly, Gubbay J (as he then was), commenting on Section 50 (2) of the 1969
Rhodesian Constitution, said that ‘it must be construed according to the dictates of
common sense and a glaring
absurdity avoided, even if to do so necessitates the interpolation of words.
Cases
1. Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD
The text in context approach to interpretation can be discussed under two headings:
The (text in context) purposive approach recognizes that statutes were created to
give legal backing to public policy and statute law is therefore inherently purposive in
nature. It therefore accepts, even directs that the interpretation of any statute or any
of its provisions should always start with an inquiry into the underlying policy
objectives of the statute. Once this is ascertained, then a correct meaning is one that
promotes these policy objectives. This approach encompasses the mischief rule but
is wider than it. There is also the understanding that in pursuit of the policy objectives
The purposive approach is explained in the decision of Dadoo Ltd and others v
Krugersdorp Municipal Council 1920 AD 530 at 543 where Innes CJ remarked as
follows:
“Speaking generally, every statute embodies some policy or is designed to
carry out some object. When the language employed admits of doubt, it falls
to be interpreted by the Court according to recognized rules of construction,
paying regard, in the first place, to the ordinary meaning of the words used,
but departing from such meaning under certain circumstances, if satisfied that
such departure would give effect to the policy and object
contemplated……………. But there must, of course, be a limit to such
departure. A Judge has authority to interpret, but not to legislate, and he
cannot do violence to the language of the lawgiver by placing upon it a
meaning of which it is not reasonably capable, in order to give effect to what
he may think to be the policy or object of the particular measure.”
The search for the purpose of legislation requires a purpose- orientated approach
which recognises the contextual framework of the legislation right from the outset
and not only in cases where a literal text-based approach has failed. The purpose
orientated approach provides a balance between grammatical and overall contextual
meaning. The interpretation process cannot be complete until the object and scope
of the legislation are taken into account. In this way the flexibilities and peculiarities
of language, and all the internal and external factors are accommodated in the
continuing timeframe within which legislation operates.
The purposive approach was explained in Maunsell v Olins [1975] AC 373 a case
in which the House of Lords had to determine whether a farm cottage attached to
farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord Simon set
out the two tier test to be taken under the purposive approach as follows.
In
The House of Lords held that the cloned embryos were covered by the statute taking
a purposive approach to statutory interpretation.
In Jones v Tower Boot Co. (1997), The Court of Appeal had to decide whether the
physical and verbal abuse of a young black worker by his workmates fell within ‘the
course of employment’ under s32 of the Race Relations Act 1976. The employer
had argued that these actions fell outside the course of the work mates’ employment,
In Mukwereza V Minister of Home Affairs & Anor 2004 (1) ZLR 445 (S) the
Supreme Court held that a purposive approach could be used to resolve lack of
clarity is a statute. When it is not clear to the court what the intention of the
legislature might have been, it was permissible for the court to resort to speculative
opinion as to what the legislature probably would have meant and that in such
speculation the court must consider the following factors:
(a) One of the main purposes of the Police Act is to provide for the control of the
police force
(b) The question of police discipline
(c) What the legislature had actually enacted expressly or impliedly
In casu, the police’s main responsibility is to maintain law and order. A member who
commits an offence that attracts imprisonment acts against such responsibility. The
intention of the legislature is such that a member be dealt with severely. The legislature
must have intended that a member who has been sentenced to a term of imprisonment
without the option of a fine, irrespective of other dimensions of the same sentence which
may not be applicable, be visited with any of the penalties set out is section 48.
It has been said that the purposive approach provides scope for judicial law-making
because the judge is allowed to decide what he/she thinks Parliament intended the
Act to say, in light of the purpose of the statute, rather than what the Act actually
says.
In RD legal systems some of the earliest attempts to utilize the purposive approach
are seen in the following cases:
Jaga challenged his deportation on the basis that he hadn’t been sentenced to
imprisonment and the Minister argued that a suspended sentence of imprisonment is
still a sentence of “imprisonment” within the ordinary meaning of the provision. Jaga
argued that “imprisonment” meant actual (as opposed to merely potential)
imprisonment and he wasn’t actually and physically held in prison.
Legal issue:
How should the phrase “sentenced to imprisonment” be interpreted?
Finding:
The majority of the court decided to adopt the textual approach and it was held that
“imprisonment” meant that the sentence imposed on the offender contained a period
Schreiner JA in his famous minority decision set out the following guidelines for the
interpretation of statutes:
i. Right from the outset the interpreter may take the wider context of provision
(eg its ambit and purpose) into consideration with the legislative text in
question.
ii. Irrespective of how clear or unambiguous the grammatical meaning of the
legislative text may seem to be, the relevant contextual factors must be taken
into account.
iii. Sometimes the wider context may even be more important than the legislative
text.
iv. Once the meaning of the text and the context (language-in- context) is
determined, it must be applied, irrespective of whether the interpreter is of the
opinion that the legislature intended something else
He concluded that:
This was one of the concrete efforts in SA case law to move beyond the plain
grammatical meaning by using the wider context to ascertain the legislative purpose
After that, a few courts were more prepared to interpret the text of the legislation in
the light of the wider contextual framework.
In University of Cape Town v Cape Bar Council and Another 1986 (4) SA
903 (A) at 914D-E: Rabie CJ held correctly that 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. He said:
This dictum was quoted with approval in the recent case of Thoroughbred
Breeders’ Association v Price Waterhouse, where it was ruled that:
The decision in Mjuqu v Johannesburg City Council 1973 (3) SA 421 can almost
be regarded as a model of the contextual approach, since the court utilised the entire
spectrum of available aids and surrounding circumstances to determine the purpose
and scope of the legislation in question.
According to the text-in-context approach, the court may modify or adapt the initial
meaning of the text to harmonise it with the purpose of the legislation. - The role of
Contextualists hold the view that the judiciary has inherent law- making discretion
during statutory interpretation. - This discretion is qualified by the prerequisite that
modification of the meaning of the text is possible (and admissible) only if and when
the scope and purpose of the legislation are absolutely clear, and also supports such
a modification. Seen from this perspective, the law making function of the judiciary is
not an infringement of the legislature’s legislative function, but merely a logical
extension of the powers of the court during the interpretation and application of the
relevant legislation in each practical instance. Consequently, the application and
utilisation of the presumptions and the various aids to interpretation are very
important tools for the contextualists in the quest for the scope and purpose of
legislation.
For a contrast between the orthodox contextual approach and the text in context
approach see Ebrahim V Minister of The Interior 1977 (1) SA 665 (A)
Values can be “common law” values like justice, human dignity, Ubuntu, peace etc
but more and more, the values that a country subscribes to are being articulated in
the Constitution. In Zimbabwe the values are set out in section 3 of the Constitution:
(1) Zimbabwe is founded on respect for the following values and principles—
It was also cautioned in Minister of Home Affairs V Fisher 1980 AC 319 that “If the
language used by the lawgiver is ignored in favour of a general resort to "values" the
result is not interpretation but divination.
Advantages Disadvantages
Leads to justice in individual Makes the law less certain , it is
cases impossible to predict when
judges will use this approach
STUDY UNIT 4
THE INFLUENCE OF THE CONSTITUTION ON THE INTERPRETATION OF
STATUTES
Cases
1. Hambly V Chief Immigration Officer 1995 (2) ZLR 264
2. Ngaru V Chief Immigtation Officer SC 26 / 04,
3. Mutumwa Dziva Mawere V Registar General CCZ 4 / 15
4. National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
5. R.M.D. Chamarbaugwalla v. The Union of India (UOI
6. Mudzuru and Tsopodzi v Minister of Justice, Legal and Parliamentary
Affairs and Anor CCZ 12 / 15
7. Holomisa v Argus Newspapers Ltd 1996 (2) SA 588
8. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
9. and Tourism 2004 (4) SA 490
10. Investigating Directorate: Serious Economic Offences v Hyundai Motor
Distributors (Pty) Ltd v Smit. 2001 (1) SA 545
11. Simon Francis Mann V Government Of Equatorial Guinea HH 1/ 2008
12. Barker McCormac (PVT) LTD v Government of Kenya 1983 (1) ZLR 137
(HC).
It must be noted that some of the key provisions in the Constitution relating to
interpretation of statutes are modelled almost word for word on corresponding
provisions of the South African Constitution of 1996. Over the last 19 years the SA
courts, particularly the Constitutional Court has developed an impressive
jurisprudence around the role of the Constitution in the interpretation of statutes.
Given the similarities between the SA and the Zimbabwe Constitutions and the fact
that it is yet too early for the Zimbabwean Constitutional court to have heard enough
cases to develop its own jurisprudence, we will be guided in this part of the study by
South African cases.
The starting point of this discussion is the principle of supremacy of the Constitution.
Section 2 of the Constitution reads:
(1) This Constitution is the supreme law of Zimbabwe and any law, practice,
custom or conduct inconsistent with it is invalid to the extent of the
inconsistency.
(2) The obligations imposed by this Constitution are binding on every person,
natural or juristic, including the State and all executive, legislative and judicial
institutions and agencies of government at every level, and must be fulfilled by
them.
Thus:
– The Constitution is the supreme law of the Republic of Zimbabwe,
– law or conduct inconsistent with it is invalid, and
The Constitution intersects with statutory interpretation in several ways. One of this
ways is through operation of the presumption that statutes should be ascribed a
meaning which is Constitutionally valid, not invalid, (the presumption of valid
meaning or presumption of Constitutionality.
(1) Where a court makes an order concerning the Constitutional invalidity of any
law or any conduct of the President or Parliament, the order has no force unless it
is confirmed by the Constitutional Court.
The first section in the DR (section 44) states unequivocally that every person,
including juristic persons, and every institution and agency of government at every
level must respect, protect, promote and fulfil the rights and freedoms set out in the
DR.
How does this have a bearing on statutory interpretation?
Statutes exist to regulate the conduct of the same subjects on whom section 44
imposes obligations ( every person, including juristic persons, and every institution
and agency of government at every level) and statutes are subject to the
Constitution. This means that the obligations imposed by statutes must be
understood in light of the standard set out in section 44. In other words duties
performed under statutory direction must be performed fully cognisant of the
Practical
Attempt to answer question 3 of exercise question 1
Reading Down
Reading down is a restricted Constitutional interpretation that will be preferred
instead of declaring the statute invalid. This remedy stems from the principle that:
The courts should try to keep legislation Constitutional and in line with common law
presumption that the legislation is not futile or meaning less. Therefore if legislation
Hambly V Chief Immigration Officer 1995 (2) ZLR 264 & Ngaru V Chief
Immigtation Officer SC 26 / 04,
At face value, this provision excludes the right of an immigrant to seek a judicial
review of the reason upon which a decision to expel him has been made, but in the
case of Hambly V Chief Immigration Officer 1995 (2)ZLR 264, and in Ngaru V
Chief Immigtation Officer SC 26 / 04, the Supreme Court has interpreted this
provision in light of the right of protection of the law provided for in section 18 of the
Lancaster House Constitution, such that where the Minister has declared any person
to be a prohibited person and has certified that disclosure of the reasons why he has
made the declaration is not in the public interest, the Minister is nevertheless obliged
to disclose these reasons in court, in camera as provided for in section 18(12) of the
Constitution. The modified outcome in keeping with the Constitution was possible
because the Court restricted ( read down) the powers of the Minister conferred by
Parliament.
See also Mutumwa Dziva Mawere V Registar General CCZ 4 / 15 where the Court
had to read down section 9 of the citizenship Act. Section 9 prohibits dual citizenship
for every citizen of Zimbabwe regardless of how that citizenship was acquired yet
section 39(2)(a) provides that citizenship by birth cannot be revoked merely because
the citizen acquired citizenship of another country. So the application of section 9 of
the Citizenship Act was “read down” and restricted to citizens by descent and by
registration.
Facts:
The Constitutionality of Section 25(5) of the Aliens Control Act, SA, which allows the
spouse or child of a person with the status of a permanent resident to immigrate to
SA to join her/his spouse or parent, was disputed as gay and lesbian permanent
residents were not allowed to rely on this section to arrange for the immigration of
their life partners. This, they claimed, was a form of unfair discrimination against
them on the basis of their sexual orientation.
The court could have simply declared section 25(5) unconstitutional and invalidated
it by they decided against this course action for the following reasons given by the
court:
"The striking down of s 25(5) will have the unfortunate result of depriving
spouses, as presently defined, from the benefits conferred by the section: it
will indeed be 'equality with a vengeance' and create 'equal graveyards'
The benefits conferred on spouses express a clear policy of the government
to protect and enhance the family life of spouses.
All these considerations indicate that, if reasonably possible, a striking down
order should not be the remedy resorted to [ ] Against the background of what
has been said above
I am satisfied that the Constitutional defect in s 25(5) can be cured with
sufficient precision by reading in after the word 'spouse' the following words:
or partner, in a permanent same-sex life partnership' and that it should indeed
be cured in this manner.
Permanent in this context means an established intention of the parties to
cohabit with one another permanently.
Finding:
Severance
This is the opposite of "reading in". The court will try to rescue a provision from the
fate of unconstitutionally by cutting out the offending part of the provision to keep the
remainder Constitutional and valid.
“When a statute is in part void, it will be enforced as regards the rest, if that is
severable “
See the case of Mudzuru and Tsopodzi v Minister of Justice, Legal and
Parliamentary Affairs and Anor CCZ 12 / 15 in which the Con Court Struck out
section 22 of the Marriages Act [Cap 5:11] for the reason that it contravened section
78 of the Constitution in as far as it allowed the marriage of girls below the age of
18.
Section 45(1) Which states that the D/R applies to all law and binds the
legislative, the executive, the judiciary and all organs of state.
Cases
The term “aids to interpretation” refers to the different materials that the judiciary
resort to in the process of statutory interpretation. Aids can be either found within the
four corners of the statute itself (internal aids) or they can be found outside the
statute (external aids.)
The use that can be made of the different parts of the anatomy of a statute in the
interpretation of that statute.
Features of a statute
feature Always
Short title
Long title
preamble
Definition into sections
Demarcations into parts (e.g Criminal Law
Codification and reform Act)
Demarcations into Chapters
Sections and their components
- Subsections
- Paragraphs
- subparagraphs
The use of internal aids is, in some, but not all respects, regulated under the
interpretation Act:
While section 6 tells us that the preamble to an enactment and any punctuation in an
enactment shall form part of the enactment and may be used as aids to the
construction of the enactment, it does not go on to tell us how it is to be used. That is
determined by the common law rules. These rules have been developed by the
courts over time. Below we will discuss the principles governing the use of each of
the features of the statute that have developed through case law.
This is the official name of the statute e.g Companies Act. Sometimes the short title
gives more detail about the purpose of the statute:
The definition section is usually section 2 of the Act but definitions can also found in
other parts of the Act. Statutory definitions take precedence over dictionary, common
law or technical definitions unless the context clearly suggests otherwise. In
Kanhym Bpk v Oudtshoorn Municipality it was held that a deviation from the
meaning in the definition clause will only be justified if the meaning is not the correct
interpretation within the context of the particular provision.
The Preamble
(ii) in restricting wide language which goes beyond the purpose of the legislation.
In Colonial Treasurer v Rand Water Board 1907 TS 479 the preamble was
describes as
a key to open the minds of the makers of the Act and the mischiefs which
they intended to redress. But the key cannot be used if the meaning of the
enacting clauses is clear and plain. In cases, however, where the wording is
ambiguous, and in cases where the court is satisfied that the legislature must
have intended to limit in some way the wide language used, then it is proper
to have recourse to the preamble. It is often difficult to decide when the terms
of an Act are so clear that they must be taken as they stand, and when it is
permissible to call the aid of a preamble. The object must always be to
ascertain the object of the legislature. And it may be necessary in arriving at
such intention to cut down general language susceptible of restriction even
though the words used are not ambiguous in themselves.
In S V Kola 1966 (4) SA 322, A transgender man found wearing female clothes was
charged under a provision which made it an offence to wear disguise in public. After
considering the preamble the court concluded that the real mischief behind the
prohibition was to prevent the commission of crimes, such as robberies, by people in
disguise. In this case the accused was motivated by psychological issues to wear
female clothes so his conduct was not covered by the provision.
In S V Davidson 1988 (3) SA 252 (ZS), the Magistrates court gave an extended
meaning of the term “public place” in the Law and Order Maintenance Act, in the
interests of maintaining law and order after consulting the preamble but the appeal
The ‘long title’ is set out at the beginning of the Act and describes the general
purposes of the Act. For example, the long title of the Domestic Violence Act says:
AN Act to make provision for the protection and relief of victims of domestic
violence and to provide for matters connected with or incidental to the
foregoing.
The use of the long title in the interpretation of statutes is regulated by the same
principles applicable to the use of the preamble. In the case of
The use of headings and marginal notes is regulated under section 7 of the
Interpretation Act
shall form no part of the enactment and shall be deemed to have been inserted for
convenience of reference only.
We are entitled to refer to the heading … for the elucidation of any clause to
which it relates. It is impossible to lay down any general rule as to the weight
which should be attached to such headings. The object in each case is to
ascertain the intention of the legislature , and the heading is an element in the
process …. 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
Punctuation
Punctuation can totally change the meaning of a statement. Consider the two
statements below
Which is surprising that under old English law, punctuation was not considered part
of the statute. English law originally started on a note of disregarding punctuation. In
the English case of Duke of Devonshire v O’Connor, Lord Esher MR said:
“To my mind, however, it is perfectly clear that in an Act of Parliament there are no
such things as brackets any more than there are such things as stops”.
By 1981, that position had shifted. Thus in Hanlon v Law Society 1981 AC 124 it
was said
“I consider that not to take account of punctuation disregards the reality that
literate people, such as Parliamentary draughtsmen, punctuate what they
write, if not identically, at least in accordance with grammatical principles.
Section 6 of the Interpretation Act makes it clear that any form of punctuation in an
enactment forms part of that enactment and may be used as an aid to interpretation.
This settles a matter that has been unclear for some time
Schedules
A schedule is found at the end of a statute. It is part of the statute and may be used
as an aid to interpretation. Schedules are useful for avoiding crowding the main body
of the statute with too much detail and clutter. Schedules are typically used to deal
with peripheral issues like forms, procedures of meetings, lists of items etc.
Sometimes the Act will empower the minister to amend a schedule through
delegated legislation. The general rule is that where there is an irreconcilable conflict
between a Schedule and a Section in the main body of the statute, the latter prevails.
Section 5 (1) of the Interpretation Act, provides that where a form is prescribed or
specified by any enactment, deviations therefrom not materially affecting the
substance nor calculated to mislead shall not invalidate the form used.
Examples of Acts where schedules are found are: Criminal Procedure and Evidence
Act [Chapter 9 : 07], Privileges Immunities and Powers of Parliament Act [Chapter
2:08], Public Accountants and Auditors Act [ Chapter 27:12]
External Aids
Cases
The term “aids to interpretation” refers to the different materials that the judiciary
resort to in the process of statutory interpretation. Aids can be either found within the
four corners of the statute itself (internal aids) or they can be found outside the
statute (external aids.)
The use of external aids is regulated under section 15B of the Constitution which
was introduced by a 2003 amendment. The provisions of section 15B are repeated
below
1. The Constitution
The subject of how the Constitution influences the interpretation of statutes was
discussed extensively in a previous lecture on the influence of the Constitution in the
interpretation of statutes but to recap:
Common law Presumption of Constitutionality also has a bearing on the use of the
Constitution as an extrinsic aid to interpretation.
The role of the Interpretation Act [Chapter 1:01] will form a separate, more detailed
discussion.
3. Dictionaries
See Stellenbosch Farmers’ Winery Ltd v Distillers’ Corp (SA) Ltd & Anor 1962 (1) SA 458 (A) at
476 E-F. The same notion was expressed in another way by MARGO J in Loryan (Pvt) Ltd v
Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W) at 846G-H:
As illustrated by the two cases above, dictionary meanings can provide a means of
evading the real purpose of a provision by resorting to literalism.
Examples would be the fact that Zimbabwe was operating under a multi-currency
system in 2012; or a certain statute was made during the era of the GNU; or there
was a war of liberation taking place in Zimbabwe in 1975.
5. 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. Legislative history can be discussed under two
headings: pre -Parliamentary material and Parliamentary material.
Exclusionary rule:
Until 1993, English law firmly excluded legislative history as an aid to statutory
interpretation. By ‘legislative’ it is meant to cover both the pre-Parliamentary
materials such as reports of committees and commissions of enquiry and the
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.
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 “It has always been a well-established and salutary rule that
Kilbrandon 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
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.
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."
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, in the 23 years 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. Ten years later, in 2003, the Zimbabwean Parliament
amended the Interpretation Act to incorporate section 15B which permits the use
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 15 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
Secondly, 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.
What other material published in the Hansard could the Court resort to:
Possibilities:-
- Reports of the PLC
- Reports generated during the pre- legislative consultations required by section
141 of the Constitution?
- References by the President in the SONA to impending Bills or in speeches
setting out the legislative agenda of the particular session?
6. International Law
Under section 15B (2)(d), of the Interpretation Act, the Court may have regard to any
treaty, convention or other international agreement that is referred to in the
enactment. More so, Sections 326(2) and 327(6) of the Constitution direct the Courts
to take international law into account in the interpretation of statutes.
Examples:
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 was used to determine
7. Foreign Law
Section 46(1)(e) of the Constitution provides that when interpreting Chapter 4 of the
Constitution a Court, tribunal, forum or body may consider relevant foreign law
It must be noted that the Court has a discretion to consider foreign law as an
influence in interpretation, not to APPLY foreign law.
Statutes in pari materia are comparable statutes or similar statutes. The extent to
which the Courts will refer to earlier judicial decisions on statutes in similar terms to
the one that they are currently interpreting. There are several circumstances giving
rise to statutes in pari materia:
A statute dealing with specialised matters might repeal and replace an older
statute dealing with the same matters e.g The Natural Resources Act was
repealed and replaced by the Environmental Management Act
A Zimbabwean statute might be modelled on the provisions of a similar
statute in another jurisdiction e.g the South African Public Finance
Management Act and the Zimbabwean Public Finance Management Act.
The British Companies Act and the Zimbabwean Companies Act
In the case of Barras v Aberdeen Steam Trawling and Fishing Co. Ltd 1933 AC
402 it was said that if an Act Parliament uses the same language which was used in
a former Act of Parliament referring to the same subject, and passed with the same
purpose, and for the same object, the safe and well known rule of construction is to
assume that the legislature In Wray v Minister of the Interior 1973 (3) SA 554 it
was stated that:
But
Before this rule can be applied, the previous judicial interpretation must be well
settled and recognised
9. Precedent
Courts do not approach the interpretation of a statute afresh each time. They are
bound by the doctrine of precedent to follow their previous decisions. Stare decisis is
part of our English Law heritage but the brand of the doctrine of precedent applied in
Roman Dutch systems is not as strict as the English Law. Precedent is desirable
because it promotes
• Judicial comity
• Common sense
• Loyalty to higher tribunals in the hierarchy is essential for the smooth working
of the system
In the English law system, the doctrine of precedent is very strictly followed but
under Roman Dutch systems including Zimbabwe, the doctrine is somewhat more
flexible. A Court may depart from a previous decision which it considers to be legally
in error. It was said in National Chemsearch (SA) (PTY) Ltd v Borrowman & Anor
1979 (3) SA 1092
“In functioning under a virile system of law, a judge must not be faint hearted
and when he is morally convinced that justice requires a departure from
precedent, he will not hesitate to do so; but on the other hand he must guard
carefully against being over bold in substituting his own opinion for those of
others lest there be too much chopping and changing and uncertainty in the
law … a mere difference of opinion without more ought not to justify a
departure from precedent”
1) There shall be no appeal from any judgment or order of the Supreme Court.
2) The Supreme Court shall not be bound by any of its own judgments, rulings or
opinions nor by those of any of its predecessors
According to Practice Direction (Precedent) – 1981 (4) SA 981 (ZSC) given by the
then Chief Justice Fieldsend:
In Katekwe, the Supreme Court had ruled that the Legal Age of Majority Act
was applicable to African women. The attainment of majority status by African
women meant that the father of an adult woman no longer had the locus
standi to claim seduction damages for her since the right to claim seduction
The new position set by the later judgement was that the reason why a
woman could not sue for seduction damages was not because of her
‘minority’ status but because of the very nature of African society. Accordingly,
the conferring of majority status by the Legal Age of Majority Act did not entitle
a woman to exercise rights not accorded to her by customary law. For
instance, she could not sue for seduction damages despite the enactment of
the Legal Age of Majority Act.
In United Bottlers (Pvt.) Ltd v Murwisi, the Supreme Court held that Section 3 of
SI371/85 (Termination of Employment Regulations) gave a labour relations officer
only two choices: either to authorize the dismissal of an employee or to order his/her
reinstatement. It emphasized that under that Section, the option to order the
payment of damages in lieu of reinstatement did not exist. A year later, in Hama v
National Railways of Zimbabwe, it departed from this decision.It held that the
position in United Bottlers (Pvt.) Ltd v Murwisi where a labour relations officer had
only these two choices was incorrect. There was an additional option for a labour
relations officer to order the payment of damages as an alternative to reinstatement.
3. MAXIMS OF STATUTORY INTERPRETATION
Cases:
Quazi v Quazi [1979] 3 All ER 897 HL(E)
Skotnes v South African Library 1997 (2) SA 770 (SCA),
Carlis v Oldfield (1887) 4 HCG 379
S V Kohler, 1979 (1) SA 861 (T)
S v Van der Merwe, 1977 (2) SA 774 (T),
Grobbelaar v De Vyver 1954 (1) SA 255 (A),
In Gregory v Fearn [1953] 2 All ER 559
Casher v Holmes (1831) 2 B & Ad 592 199
Foster v Diphwys Casson (1887) 18 QBD 428,
R v Inhabitants of Sedgely (1831) 2 B & Ad 65
In Intro Properties (UK) Ltd v Sauvel, QB 1019 (1983), 2 All ER 495 (1983), 2
WLR 908 (1983).
Inland Revenue v Frere [1964] 3 All ER 796
Statutory interpretation as a discipline has its own Latin maxims which are
sometimes referred to as ‘rules of language’. These are not legal rules but are rough
guides to the way in which people speak in certain contexts. In fact, maxims are
really presumptions about what the intention of Parliament must have been when
statutes use language in certain ways or uses words in certain configurations.
There are many maxims applicable to the interpretation of statutes but we will look at
several of the most commonly used ones below.
1. ‘Ejusdem Generis’
The rule of construction embodied in the ejudem generis maxim was laid down in
1596 in the Archbishop of Canterbury case. Ejusdem generis literally means ‘of the
same kind’. This maxim is useful when a statute has explicitly set forth a series of
The presumption then is that the draughtsman’s mind was directed only to the
genus indicated by the specific words and that he did not, by his addition of
the word ‘other’ to the list, intend to stray beyond its boundaries, but merely to
bring within the ambit of the enacting words those species which complete the
genus but have been omitted from the preceding list either inadvertently or in
the interests of brevity.
In the South African case of Sacks v City Council of Johannesburg, the court
considered a traffic by-law which provided that ‘no person shall sit or lie down on any
street, nor shall any person stand, congregate, loiter or walk, or otherwise act in such
manner as to obstruct free traffic’. It was held that the general words ‘otherwise act
in such manner as to obstruct traffic’ must be restricted to the same character, as
the particular words referred to an obstruction by a direct physical act of the
accused. In casu, the obstruction was caused by a crowd that had gathered to listen
For example, in an English statute entitled the ‘Sunday Observance Act 1677’, it was
provided that ‘no tradesman, artificer, workman, labourer or other person
whatsoever, shall do or exercise any worldly labour, business, or work of their
ordinary callings upon the Lord’s Day’. It was held that the expression ‘other person
whatsoever’ must be restricted to ‘other persons’ following callings of the similar kind
to those specified. A barber was held not covered.
In the South African case of Skotnes v South African Library 1997 (2) SA 770
(SCA), section 2(1)(b) of the Legal deposit of publications Act provides that a copy of
every publication published in the Republic of South Africa be supplied free of
charge to every legal deposit library if copies of such a publication are intended to be
sold to members of the public. The definition of “publication” in the Act included a
printed book, newspaper magazine periodical journal, pamphlet, brochure, sheet
card or portion thereof of any other similar material.
The appellant refused to supply a free copy of a publication to the responded on the
basis that it was not a “printed book” as defined in the Act. It was argued for the
appellant that the words following “printed book” in the definition restrict its meaning.
Since these items were all mass produced, inexpensive and machinery produced
publications involving essentially commercial printing, it created a distinct category.
As a result of the distinct category, the ejusdem generis rule applies, the Skotnes
book falls outside that category and the Act does not apply to it.
The court took the view that unless there is a distinct category formed by the specific
words, the ejusdem generis rule cannot be applied. It was held that the words
following “printed book” in the definition section did not clearly indicate a genus of
printed material which would restrict the meaning of “printed book” to some species
of that genus. The intention of the legislature with the Act was to build up a national
collection of books providing a record of cultural and scientific activities. The scope
and purpose of the Act did not support such a restrictive interpretation and so the
ejusdem generis rule did not apply.
The class or category should not have been exhausted by the enumeration.
In a case where the members of the class or genus are exhausted, it is assumed
that the general words refer to a broader genus and therefore cannot be interpreted
restrictively Carlis V Oldfield 4 HCG 379
In S V Kohler, 1979 (1) SA 861 (T) The court heard an appeal against a conviction
by a magistrate’s court, which convicted Kohler of having contravened a municipal
poultry regulation by keeping a peacock within the municipal boundaries without a
licence. The regulation defined ‘poultry’ as any fowl, duck, goose, turkey, guinea
fowl, partridge, pheasant, pigeon or the chickens thereof, or any other bird. The
defence alleged that peacocks are not poultry.
Schreiner JA, in Grobbelaar v De Vyver 1954 (1) SA 255 (A), said this:
‘The instrument of interpretation denoted by ejusdem generis or
nascitur sociis must always be borne in mind where the meaning of
general words in association with specific words has to be ascertained;
but what is often a useful means of finding out what was meant by a
provision in a contract or statute must not be allowed to substitute an
artificial intention for what was clearly the real one.’
The ejusdem generis rule does not apply if it defeats a clear purpose of the
legislation or is contrary to the clear intentions of the legislature. In such cases, the
words are given their wider meaning in order to accord with the legislative object. For
example, it is inappropriate to resort to the rule where the statute uses the word
‘include’.41 Thus, in S v Van der Merwe, 1977 (2) SA 774 (T), the statute defined
‘fuel’ as ‘includes diesel oil, gas, petrol or any other substance capable of being used
as a fuel’. Although the accused was charged with using methanol (a combustible
liquid), the magistrate applied the ejusdem generis rule and limited this definition to
oil-based products. As methanol is not an oil-based product, he acquitted the
In Munarwo V Grain Marketing Board, 2009 (1) ZLR 304 (S), it was held that the
ejusdem generis principle is not a rule of general application. It has to be applied
with caution and not pushed too far. It is a mere presumption in the absence of other
indications from the legislature. It should not be invoked automatically whenever
general words follow particular words. Special care should be taken when applying
the rule to employment codes because in general such codes are not drafted with
the same expertise and precision required for the drafting of statutes, almost
invariably they are drafted by lay men.
3. Noscitur a Sociis
This maxim literally means, ‘a thing is known by its associates’. It is a broader
linguistic rule that refers to the fact that words derive their meaning from the words
which surround them. Or the meaning of a word is or may be known from the
English words derive colour from those which surround them. Sentences are
not mere collections of words to be taken out of the sentence, defined
separately by reference to the dictionary or decided cases, and then put back
into the sentence with the meaning which you have assigned to them as
separate words.
For example, in Abrahams v Cavey, [1968] 1 QB 479 the accused was charged
with contravening Section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 which
penalised ‘riotous, violent, or indecent behaviour’ in churches and churchyards. 44
The accused had shouted out during a Methodist Church Service (held in connection
with the Labour Party Conference), ‘Oh you hypocrites, how can you use the word of
God to justify your policies?’ It was held that the word ‘indecent’ did not have its
usual sexual connotation, but, because of the surrounding words, it must be taken to
refer to the indecency, i.e., impropriety, of causing a disturbance within a sacred
place.
In Inland Revenue v Frere [1964] 3 All ER 796, the respondent sought to deduct
the interest paid on a short term loan from his income for the purposes of assessing
his liability to pay tax. The Income Tax Act of 1952 allowed "the amount of interest,
annuities or other annual interest" to be deducted from the income. It was held that
Under the noscitur a sociis rule, the mention of amount of interest related only to
annual interest as the other items related to annual payments. The respondent's
interest payment was not an annual interest payment and therefore he could not
deduct it from his income and he was required to pay tax on it.
In the case of Foster v Diphwys Casson (1887) 18 QBD 428, which involved a
statute which stated that explosives taken into a mine must be in a "case or
canister"; the defendant had used a cloth bag. The courts had to consider whether a
The maxim should however be applied with caution. A Canadian Judge once
remarked: “The principle of noscitur a souis does not in my judgment entitle one to
overlook self-evident facts. If you meet seven men with black hair and one with red
hair, you are not entitled to say that here are eight men with black hair."
The express mention of the House of Assembly means that the Senate is excluded
from the operation of this section.
A leading example is the English case of Lead Smelting Co v Richardson. The Poor
Relief Act, 1601, imposed a poor rate on the occupiers of ‘lands, houses, tithes, and
coal mines’. The court held that the express mention of ‘coal mines’ meant that the
word ‘lands’ did not include mines. Thus, the argument that mines other than coal
mines were included under ‘lands’ was rejected.
“To ascribe a sensible meaning to subs (5) and to avoid superfluity necessitates the
legitimate recourse of construing the general words “any sentence” in subs (6) as excluding
the specific reference to “a sentence of death” in subs (5). This is no more than an
application of the rule embodied in the maxim “expressio unius exclusio alterius”. It draws
attention to the fairly obvious linguistic point that in many contexts the mention of some
matters warrants an inference that other cognate matters were intentionally excluded. See
Maxwell on The Interpretation of Statutes 12 ed at p 293”.
In the case of Eagle Insurance Co Ltd v Grant 1989 (3) ZLR 278 (SC) at 280F KORSAH JA
commenting on the operation of the maxim said:
“A rule which is variably resorted to in the interpretation of statutes the expressio unius rule
– is that the mention of one or more things of a particular class may be regarded as silently
excluding all other members of the class”.
In Intro Properties (UK) Ltd v Sauvel, QB 1019 (1983), 2 All ER 495 (1983), 2
WLR 908 (1983). the Diplomatic Privileges Act 1964 protected, in relation to a
foreign mission (diplomatic offices/residences), what were defined as the physical
‘premises of the mission’. The definition of this phrase in the legislation was:
The buildings or parts of buildings and the land ancillary thereto, irrespective of
ownership, used for the purposes of the mission including the residence of the head
of the mission. The court had to determine whether or not the private dwelling
occupied by a financial counsellor at the French Embassy in London was protected.
It was held that the specific mention of the residence of the Head of Mission
excluded the residences of the other members of the mission.
Counsel for the applicant objected to the citation of 1 st respondent in the petition. He
relied on the definition of respondent found in Part XX III in section 166 of the Act.
The section reads as follows: In this Part—
It was submitted and accepted that the legislature deliberately defined respondent in
the Act so as to exclude the 1st respondent in circumstances where it would
automatically have been included by virtue of its overarching role in running and
conducting elections.
In Sunfresh Enterprises (Pvt ) Ltd V ZIMRA 2004 (1) ZLR 506 (H), the court had to
interpret paragraph 1 of the 17th schedule to the Income Tax Act which read
“fees” means any amount from a source within Zimbabwe payable in respect of any
services of a technical, managerial administrative or consultative nature …. “
The court applied the expressio unius principle to hold that the express mention of
the source of the fees emanating from within Zimbabwe had the effect of excluding
from the ambit of the provision, amounts paid from a source outside Zimbabwe
This maxim does not apply where its application would lead to a defeat of the
legislative intention. In this regard, it is important to bear in mind what Cross has
said, namely:
It is doubtful whether the maxim does any more than draw attention to a fairly
obvious linguistic point, viz., that in many contexts the mention of some matters
warrants an inference that other cognate matters were intentionally excluded.
Allowance must always be made for the fact that the ‘exclusio’ may have been
accidental, still more for the fact that there may have been good reason for it. It was
on this basis that the Rhodesian Appellate Division refused to apply the expressio
unius rule in R v Barrington. The statute had specifically penalized persons who
unlawfully ‘offer to sell gold’ and was silent on those who ‘offer to buy gold’. It was
Where a complex sentence has more than one subject, and more than one
object, it may be the right construction to render each to each, by reading the
provision distributively and applying each object to its appropriate subject.
A similar principle applies to verbs and their subjects, and to other parts of speech.
Two examples that illustrate this maxim are:
1. ‘Men and women may become members of fraternities and societies’. This can be
interpreted as being gender-specific, i.e., that men may become members of
fraternities and women members of societies.
2. ‘Anyone who shall draw or load a sword or gun’ can, however, be interpreted as
anyone who draws a sword or load a gun. In the English case of Overseers of
Wigton v Overseers of Snaith, the issue concerned interpretation of Section 5 of
the Poor Law Amendment Act 1849. This provided for the transfer of a lunatic
pauper from one poor law union to another and gave the receiving union a right to
compensation from the other. This right was expressed as one to receive the
expenses incurred ‘in and about the obtaining any order of justices for the removal
and maintenance of a lunatic pauper’. The question that arose was whether or not
the receiving union could claim for the ongoing maintenance of the pauper. The
wording, on the face of it, suggested that what could be claimed was not the
maintenance per se, but only costs of obtaining an order from the justice for the
removal and maintenance. It turned out that an order of the justices was required
only for removal and not for maintenance. The court held that the intention was to
give a right to compensation for two separate issues, namely (a) the cost of obtaining
the removal order, and (b) the ongoing maintenance of the pauper. This
interpretation was arrived at by assigning the phrase ‘in and about’ to each of the
removal order and the maintenance of the pauper. The Section was subsequently
rephrased to read: ‘The receiving union shall be entitled to the expenses incurred ‘in
The maxim was applied by Gubbay J (as he then was) in S v Mujee. 1981(3) SA
800. The accused had been convicted by the Magistrates Court of failing to make
payments under a contribution order made in terms of the Maintenance Act (then
Chapter 35). The contribution order had been made by a juvenile court in respect of
his minor child who had been placed under a certified institution. The payments were
ordered to be made to the named institution. The accused had been convicted of
failing to make payments for the period 1 April 1980 to 1 August 1980. However, it
emerged that the minor child had, in fact, been discharged from the named certified
institution on 28 February 1980, but that the order requiring the accused to make
payments had not been withdrawn. The High Court set aside the accused’s
conviction by applying the maxim ‘cessante ratione legis cessat ipsa lex’. Gubbay J
(as he then was) had this to say:
It seems to me that, if ever there was a case in which this maxim applies, it is the
present. The ratio for the contribution order was to compel the accused in the
fulfilment of his parental duty of support – to contribute towards the cost incurred by
the certified institution in maintaining his child. The ratio fell away completely with the
removal of the child from the certified institution in February 1980. It could not have
been the intention of the lawmaker to treat as valid a maintenance or contribution
order when the entire object for which the order was made has ceased to exist.
A statute that deals with specific matters takes precedence over one that deals with
general matters:
Government of the Republic of South Africa v Government of KwaZulu 1983(1) SA
Lord Hobhouse delivering the judgment of the Privy Council in Barker v A Edger ([1898}
AC at 754):
'Where general words in a later Act are capable of reasoning and sensible application
without extending them to subjects specially dealt with by earlier legislation, that earlier
and special legislation is not to be held indirectly. .. altered. .. merely by force of such
general words, without any indication of a particular intention to do so. "In such cases it
is presumed to have only general cases in view and not particular cases which have
been already otherwise provided for by the special Act. Having already given its
attention to the particular subject and provided for it, the Legislature is reasonably
presumed not to alter that special provision by a subsequent general enactment unless
that intention be manifested in explicit language . . .(Maxwell Interpretation of Statutes
7th edat 153)."
Cases:
There are many presumptions of legislative intent and perhaps it is possible to write a book
just of the subject of presumptions. What this chapter will seek to do is to clearly set out the
nature of presumptions and the mechanics of how they are used by reference to some of
the more commonly used presumptions.
Presumption of Constitutionality
(see Zim Township Developers (Pvt) (Ltd) v Lou’s Shoes Pvt Ltd 1983 (2) ZLR
376).
The Court held that one commences the process of interpretation of the provision with the
presumption of Constitutionality. Every statute is presumed to be Constitutional, that is to
say, the Legislature is presumed to have acted within the parameters of the Constitution.
Thus, where a provision in a statute is capable of two possible interpretations, one contrary
to the Constitution and the other in keeping therewith, the Court conducting the inquiry into
the Constitutionality or otherwise of the provision must adopt the meaning which will give
effect to the Constitution.
The Court also held that the right to vote is absolute. No derogation therefrom is provided
for by the Constitution. The Court must proceed from the premise that Parliament intended
to act constitutionally and, in casu, to respect the sacred right of the special voters to vote.
It therefore could not have intended to deprive special voters of their right to vote should
the necessary measures not be put in place by the State to enable them to cast their special
votes on the dates prescribed.
The legislature does not intend to alter the existing or the common law law
more than is necessary.
On the other hand, in the event of any direct conflict between Statute
and Common law, Statute law always prevails. See Commissioner of
Taxes v First Merchant Bank Ltd 1997 (1) ZLR 350 (S); Henks Construction (Pvt)
Ltd v Zimbabwe Defence 1998 (1) ZLR 49 (S) Nyamande V Zuva Petroleum SC
43 / 15
International law is a source of law in Zimbabwe under the conditions provided for in terms
of section 326 and 327 of the Constitution. In terms of section 326, the rules of customary
When interpreting legislation, every Court and tribunal must adopt any reasonable
interpretation of the legislation that is consistent with customary international law
applicable in Zimbabwe, in preference to an alternative interpretation inconsistent with
that law.
The provisions of section 326 of the Constitution are new to our system in the sense
that the Lancaster House Constitution was silent on the question of the status of
customary international law. Notwithstanding this silence, the Courts had always
considered customary international law to be applicable in Zimbabwe to the same
extent as the common law11.
The case of Simon Francis Mann v Government of equatorial Guinea is an example of the
high Court using a rule of customary international law to interpret legislation. In that case,
Mr. Mann, a British citizen had been arrested in Zimbabwe while he was enroute to
Equatorial Guinea to conduct mercenary activities to overthrow the government of that
country, ( so it was alleged). At that time, Zimbabwe did not have legislation in respect of
which it could have charged Mr. Mann for terrorist activities and had to contend with
charging and convicting him on relatively minor charges relating to the illegal possession of
firearms. He was sentenced to a few months in jail. Towards the time scheduled for his
release, the government of Equatorial Guinea requested the Government of Zimbabwe to
extradite Mr. Mann to Equatorial Guinea so that he could face charges of attempting to
other throw the government.
Mr. Mann applied to the Court for an order refusing the request on the grounds that
Zimbabwe had an obligation under the international law principle of non refoulment to
refuse to extradite an accused person to any country where that person is likely to face
torture. The principle of non refoulment is a principle that is expressly provided for in
11
S v Mharapara, Barcomacomic v Government of Kenya, Sibanda v ICRC
The position with regard to international agreements, also known as treaty law is that
international agreements have to be approved by Parliament and subsequently ratified
at the international level before they can be incorporated into Zimbabwean law. When
an agreement has been ratified, it is binding on Zimbabwe at the international level,
that is to say, Zimbabwe can be held accountable by other states that are parties to the
agreement for the fulfilment of her obligations under that agreement, but before such
an agreement has been incorporated into Zimbabwean law by an Act of Parliament, its
provisions cannot be applied by the Courts directly12. Section 327(6) however provides:
When interpreting legislation, every Court and tribunal must adopt any reasonable
interpretation of the legislation that is consistent with any international convention,
treaty or agreement which is binding on Zimbabwe, in preference to an alternative
interpretation inconsistent with that convention, treaty or agreement.
It is also worth mentioning that section 15B of the Interpretation Act provides that the Court
is permitted to treat international agreements as extrinsic aids to interpretation, albeit under
12
Examples of statutes incorporating international agreements include the Geneva Conventions Act, the
Refugees Act, the Trafficking in Persons Act and the Privileges and Immunities Act
13
The conditions, interalia, are that the agreement ought to have been referred to in the statute under
consideration and that there should be some ambiguity or other lack of clarity concerning the meaning of the
provision under consideration.
While it is clear that the law cannot be applied retrospectively to convist a person of conduct
which was not an offence at the time it was committed an interesting question is whether a
statutory sentence which came into force after the crime was committed but before the
accused person was convicted can be applied in sentencing that person.
We have two opposing case law positions on that point in our system:
The stock Theft Amendment Act came into force with effect from 27 August 2004. Section
12 provides:
“Any person who is convicted of the theft or attempted theft of any equine or
bovine animal or receiving knowing it to habe been stolen or inciting or conspiring
with any other person to commit any of the foregoing offences shall, if there are no
special circumstances in the particular case ….. be liable to not less than 9 years or
more than twenty five years…..
Thus a minimum mandatory sentence of 9 years is set for stock theft. In both cases, the
accused persons had committed or were deemed to have committed stock theft before 27
August 2004 ( that is to say, before the mandatory sentence became operational). The
In 4 cases decided at the same time which we will call S V Mzanywa HB 9 / 06 the High
Court division in Bulawayo ruled that the mandatory sentence provisions had prospective
application because according to the wording of section 12, the sentence was applicable
upon conviction and not upon commission of the crime.
Five years later, in 2011, the Harare Division of the High Court in the case of S V
Mapanzure and Anor, 141 / 11, had the opportunity to consider the same question. This
time, the Court declared its opinion that the Mzanywa judgment had been in error and
departed from it. In a judgment supported by a long line of case, which were anchored on
the ratio set in the case of S v Mutandwa and Another 1973 (3) SA 391 Court ruled
that the mandatory sentence provisions did not have retroactive effect. Justice Kudya with
Justice Chitakunye agreeing, stated:
Accordingly, I would, with respect, differ with the conclusion reached in Mzanywa’s
case. I find myself in agreement with the decisions which hold that it has no
retroactive effect.
In cases of doubt the most beneficial interpretation will be adopted.The Statute law, like the
common law, is not presumed to require the impossible. This presumption provides the
basis for the golden rule of interpretation: the Courts will depart from a literal meaning that
will lead to absurd, anomalous or unjust results.
The elements of the principles of natural justice were embodied in section 18 of the
Lancaster house Constitution but the same elements are now found in section 68 which
protects the right to just administrative action and section 69 which protects the right to
a fair hearing and section 70 which provides for the rights of accused persons.
So, if a statute confers on a public authority to make a decision that could adversely
affects the rights of an individual but says nothing or little about how that power should
be exercised or does not provide for a procedure to be followed in arriving at the
See De Villiers & another v. Sports Pools Pvt. Ltd (No. 2) 1976 (2) RLR 233
(AD); and Holland & Ors v Ministry of Public Service, Labour & Social Welfare
1997 (1) ZLR 186.
Under our Constitution, it is impossible to totally ouster the jurisdiction of the Courts except
in exceptional cases involving the exercise of Presidential prerogatives (powers) or acts of
state. It should be noted that under the current Constitution the powers of the executive to
exercise prerogatives outside the scrutiny of the judiciary has been severely whittled down.
Almost every action of the executive is justiciable. Even the power of Parliament to ouster
the jurisdiction of the Courts in the exercise of Parliamentary privildges has also been
whittled down by the new Constitution.
This presumptions means that when a statutory provision purports to ouster the jurisdiction
of the Courts, this should not be taken at face value. This should be understood in light of
section 68 of the Constitution which protects the right to administrative justice. An
aggrieved party should still be able to seek redress in terms of the administrative justice Act.
For example Section 19(2) of the War Veterans Act and section 16(2) of the Ex-
political
Prisoners, Detainees and Restrictees Act.
empower the respective Boards to make decisions determining who to register as a War
veteran or dependant in terms of the Acts; and to make determinations of any assistance to
be granted to beneficiaries in terms of any scheme; and further provides that any person
who is aggrieved by the decision of the board may appeal to the Minister. The Minister may,
on an appeal in terms of subsection (1), either confirm the decision of the Board or remit
the matter to the Board for further consideration subject to such recommendations
regarding the appeal as the Minister may consider appropriate, and the decision of the
Board after reconsideration of the matter in terms of this subsection shall be final. The word
In the case of Tamanikwa & Ors V Zimbabwe Manpower Development Fund. 2013
(2) ZLR 46, it was held that the jurisdiction of the Labour Court to entertain a labour
dispute brought to it by am employee of ZIMDEF was not oustered notwithstanding the
provisions of a statutory instrument which purportedly ousted it.
The power of Parliament to delegate its lawmaking function is regulated under section 134
of the Constitution and is quite broad. It is however subject to greater restriction or even
excluded altogether in the following cases. This is because there are certain powers of
Parliament which have important and far reaching consequences on the state and on
individuals to the extent that they are powers that cannot be readily delegated or which if
delegated should not be exercised outside the close scrutiny of parliament
No statutory instrument can impose a charge or levy in the nature of a tax unless the
making of such a statutory instrument is specifically authorised by an Act of Parliament:
Note that a “tax” should be distinguished from a “fee”: the latter denotes a charge for some
item or service provided to the payer, and a statutory instrument imposing fees does not
Allowable derogations from the rights and freedoms of individuals that are enshrined
in the Declaration of Rights must be spelt out in the statute itself and not left to be
determined by a Minister or other official or delegated lawmaker by statutory
instrument, general notice or administrative action.
Cases:
The primary purpose of statutes is to lay down the law on a specific subject. They
create rules and communicate legal commands to the people. The commands could
direct either that something ought to be done, that the doing of something is
prohibited or that something ought to be done in a certain manner.
Some statutory provisions are very clear about the consequences of non-compliance
with statutory provisions. Consequences range from penalties to the nullification of
the the purported action. If the Act is explicit about the consequences of non-
compliance, well and good but unfortunately, In many cases, the statute is silent
about what should be done where there is non-compliance or incomplete
compliance. This leaves the judiciary with the task of deciding of the fate of the
action.
The fate of acts done contrary to statutory provisions is governed by the roman dutch
law principle :quid fit contra legem est jure nullum which means literally, that
anything done contrary to the law is null and void. This is however too simple a way
of looking at it because circumstances differ from case to case and there may be
certain factors which could persuade the judge that justice would not be served by
applying this principle too strictly. For example
Of course not all cases will be treated the same. We are going to look at some of the
factors that the courts consider in deciding the fate of acts done contrary to statutory
provisions.
This terminology is strictly speaking not quite correct. As Wiechers points out:
“In principle, all legislative provisions are peremptory, they are after all the
law, and legally binding. Were this not so, we would not call them law by
suggestions or recommendations for good conduct.”
The correct approach in our law is as is given in the case of Sterling Products
International V Zulu 1988 (2) ZLR 293 (SC) where it was held that in deciding
whether the regulations had nevertheless been complied with, the court must look
not at the quality of the command and whether it is characterised as “peremptory “ or
directory”, but at the intention of the legislature, which can only be derived from the
words of the enactment, its general plan and its objects. Having discovered the
object of the enactment, the court must decide whether that object is defeated or
This was the position in South Africa prior to the current SA Constitution as seen in
the case of Ex Parte Mothuloe (Law Society, Transvaal, Intervening 1996 (4) SA
1131 (T)) which confirmed a trite principle of statutory interpretation that when
considering whether a statutory provision has been complied with, the answer is to
be found by having regard to the intention of the legislature as ascertained not only
from the language, but also from the scope and purpose of the enactment as a
whole. The approach it seems has survived the new Constitution as was seen in the
2002 case of Weenen Transitional Local Council v S J Van Dyk Case 399 / 2000
In that case, the court dealt with local authority ordinances that provided that rates
levied by the local authority would fall due on a date determined only after certain
processes in particular advertisements of the proposed rates had been carried out by
council. Council had not fully complied with advertisement requirements and so the
applicant argued that the rates were not due and therefore Council could not
demand payment thereof.
The court upheld that argument and had the following to say:
“It seems to me that the correct approach to the objection that the appellant
had failed to comply with the requirements of s 166 of the Ordinance is to
follow a common sense approach by asking the question whether the steps
taken by the local authority were effective to bring about the exigibility of the
claim measured against the intention of the legislature as ascertained from
the language, scope and purpose of the enactment as a whole and the
statutory requirement in particular ……. Legalistic debates as to whether the
enactment is peremptory (imperative, absolute, mandatory, a categorical
imperative) or merely directory; whether 'shall' should be read as 'may';
whether strict as opposed to substantial compliance is required; whether
delegated legislation dealing with formal requirements are of legislative or
administrative nature, etc may be interesting, but seldom essential to the
outcome of a real case before the courts. They tell us what the outcome of
the court's interpretation of the particular enactment is; they cannot tell us how
to interpret. These debates have a posteriori, not a priori significance.
“It is clear from the authorities that even where the formalities required by
statute are peremptory it is not every deviation from the literal prescription that
is fatal. Even in that event, the question remains whether, in spite of the
defects, the object of the statutory provision had been achieved …….
The purpose of s 4(2) is to afford the respondents in an application
under PIE an additional opportunity, apart from the opportunity they have
already had under the rules of court, to put all the circumstances they allege
14
1972 (3) SA 508
This case should be compared with Cape Killarney Property Investments (Pty) Ltd v
Mahamba 2001 (4) SA 1222 (SCA). Wherein it was held that the same notice issued the
same Act had to conform with the previously obtained directions of the court, with reference
to both its contents and the manner in which it is to be served. The difference was in the
different circumstances of the two cases.
Semantic Guidelines
The purpose of the relevant legislation remains the primary consideration in
determining the fate of acts done contrary to statutory provisions but there is a way
in which language is used that could be a relevant consideration in determining what
parliament could have intended. These guidelines act more like presumptions which
means that thy are capable of being rebutted where appropriate given the context of
the statute and other relevant considerations.
i. The use of words with an imperative character is an indication that the
provision requires strict compliance ( ie is peremptory) such words includes
“shall” or “must”. See Bezuidenhout V AA Mutual Insurance Association
Ltd 1978 (1) SA 703 and Messenger of the Magistrates’ Court, Durban V
Pillay 1952 (3) SA 687 ; Chizikani & Anor V CABS 1998 (1) ZLR 371 (SC)
15
1986 (3) SA 543
Jurisprudential Guidelines
Jurisprudential Guidelines are tests based on legal principles which have been
developed and formulated by the courts. These guidelines lean towards the
teleological approach to interpretation as they are more concerned with the
consequences of characterizing the relevant provision as being either directory or
peremptory. These guidelines are said to be more influential than the semantic
guidelines.
- If, on weighing up the ambit and aims of the provision, nullity would lead to
injustice or inconvenience, among others, and provided there is no express
statement that the act would be void if the relevant prescription is not
complied with, there is a presumption in favour of validity. See the cases of
Pio V Franklin NO & Anor16., R V Lewinson17 and Trans-Afrika Credit and
Savings Bank Ltd. V Union Guarantee and Insurance Co. Ltd18
- Another example of this approach is found in Forum Party of Zimbabwe and
Ors V Minister of Local government, Rural and Urban Development and
Ors 1996 (1) ZLR 162 (HC) where it was held inter alia that the publication of
16
1949 (3) SA 442
17
1922 TPD 366
18
1963 (2) SA 92
- If the validity of the Act would defeat the purpose of the legislation, this is an
indication that the conduct should be null and void (R v Lewinsohn 1922 TPD
336]
- If strict compliance with the provision would lead to injustice and even fraud it
is presumed that the provision is directory see Johannesburg City Council V
Arumgan 1961 (3) SA 748 (W)
The court has also developed a number of presumptions relating to specific practical
situations. Still when applying them, it must be kept in mind that the primary
consideration is the intention of the legislature and these presumptions may be
rebutted by the clear intention of the legislature for a contrary outcome.
- Where legislation protects the public revenue such as rates and taxes, there
is a presumption against nullity even if a penal clause has been added – Mc