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Restrictive Interpretation
An analysis of the relevance of context, am-
biguity and the maxims employed in the
process of restrictive interpretation of
statutory provisions of legislation

Summary

The cardinal principle of interpretation is to determine the intention of the legislature.

This is an artificial and not a psychological intention. The intention of the legislature is
an intellectual construction arrived at through a process of inference. If the intention of
the legislature does not appear to be unequivocal from the language and the conten, the
presumptions of legislative intent become applicable. These presumptions, which may
also be used to formulate the intention of the legislature, reOect the character and ethos
of Roman -Dutch common law, which is based on the jurisprudence of natural law. Once
the intention of the legislature has been ascertained, the interpreter must consider
whether the words of the statute accurately reOect that intention. If they do not, then
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

certain techniques and canons must be employed to bring the words in line with the
intention. There are techniques both of restrictive and enensive interpretation which in-
volve the canons ofinterpretation. This article analyses the application of the maxims of
interpretation used to effect restrictive interpretation and the relevance of conten, am-
biguity and other characteristics of language such as generality, vagueness and Oexibility
in the deployment of these maxims.

Opsomming
Die vemaamste reel van wetsuitleg is om die bedoeling van die wetgewer vas te stel.
Hierdie is 'n kunsmatige bedoeling, nie 'n sielkundige bedoeling nie. Die bedoeling van
die wetgewer is 'n intellektuele konstruksie wat deur middel van 'n proses van aOeiding
bereik word. Indien die bedoeling van die wetgewer nie ondubbelsinning uit die woorde
en die verband blyk nie, is dievermoedens van wetgewende uitlegvan toepassing. Hier-
die vermoedens, wat ook gebruik mag word om die bedoeling van die wetgewer te for-
muleer, weerspieel die karakteren etos van die Romeins-Hollansegemenereg, wat geba-
seer is op die regsleer van natuurlike reg. Sodra die bedoeling van die wetgewer bepaal
is, moet die uitlegger oorweeg of die woorde van die wet daardie bedoeling noukeulig
weerspieel. Indien dit nie die geval is nie, moet sekere tegnieke en leerreels gebruik word
om die woorde met die bedoeling te vereenselwig. Daar is tegnieke van sowel restrik-
tiewe as ekstensiewe uitleg wat die leerreels van uitleg betref. Hierdie artikel ontleed die
toepassing van die grondereels van wetsuitleg wat gebruik word in die toepassing van re-
striktiewe uitleg en die tersaalikheid van die teksverband, dubbelsinnigheid en ander
eienskappe van taal soos alegemeenheid, vaagheid en buigsaamheid in die ontplooiing
van hierdie leerreels.
Prof G Devenish
FaculJy ofPublic Law,. University ofNatal,
King George V Avenue, Durban, 4001
 Tydskrifvir Regswetenskap 1992:17(1)

j<\ word is not a crystal, transparent and unchanged, it

is the skin of a living thought and may vary greatly in
color and context accordinf to the circumstances and
the time in which it is used.'

Introduction

The cardinal principle of interpretation is to determine the intention of the

legislature. This is an artificial and not a psychological intention, although ac-
cording to Cowen 'the phrase suggests a phenomenon of individual psycho-
logy,.2 The intention of the legislature is an intellectual construction arrived at
through a process of inference and thus involves a process of inductive reason-
ing. If the intention of the legislature does not appear to be unequivocal from
the languafe and the context, the presumptions of legislative intent become
applicable. These presumptions, which may also be used to formulate the in-
tention of the legislature, reflect the character and ethos of Roman-Dutch
s
common law, which is based on the jurisprudence of naturallaw. Once the in-
tention of the legislature has been ascertained, the interpreter must consider
whether the words of the statute accurately reflect Lhat intention. If they do
not, then certain techniques and canons must be employed to bring the words
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in line with the intention. There are techniques both of restrictive and exten-
sive interpretation which involve the canons of interpretation. This article ana-
lyses the application of the maxims of interpretation used to effect restrictive
interpretation and the relevance of context, ambiguity and other charac-
teristics of language such as generality, vagueness and flexibility in the deploy-
ment of these maxims.
Words in a statute must only be given their literal and ordinary grammatical
meaning if this meaning is in accordance with the intention of the legislature.
6
Such a meaning constitutes the legal meaning attributed to the words. The
ordinary grammatical meaning and the legal meaning usually coincide,7 given
that meaning is always dependent on context. llcnnion describes the grammati-

Justice Holmes Towne v Eisner 245 US 418, 425, 38 S Ct 158, LEd 372 (1918).
2 ONIen 1976:154.
3 Steyn 1981:69.
4 Steyn 1981:240.
5 Wessels 1908:283,293.
6 Bennion 1984:199 defines the legal meaning as follows: 'the interpreter is required
to determine and apply the legal meaning of the enactment, that is the meaning that
conveys the legislative intention:
7 Bennion 1984:199.

2
 DevenishlRestrictive Interpretation

cal meaning of an enactment as

'its linguistic meaning taken in isolation, that is the meaning it bears when,
as a piece of English prose, it is construed according to the rules and usages
of English grammar, syntax and punctuation, and accepted linguistic ca-
nons of construction.,8

The Relevance of Context9 for the Process of

Interpretation

In Pillai v Auto Protection Insurance Co Ltd 10 Harcourt J observed that '[t ]he
court must endeavour to construe the language or words used in the enact-
ment in the context in which they appear in the Act,n and in S v Coetzee l2 he
emphasized that the meaning of words is t~ becontrolled by the contexL rather
than by what may be their sLrict etymological sense or their popul!lr meaning
independent of the context. In Coetzee's case the court had to inLerpret the
word 'passenger' in the overloading regulation 13 framed under the relevant
Road Traffic Ordinance. 14 The etymological meaning of the word 'passenger'
according to the Oxford English Dictionary is one who travels or is carried on a
vessel, vehicle or coach, with the qualification that in modern usage it has al-
most always an implication of public conveyance of fare-paying passengers.
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Yet the court held that for the purposes of the interpretation of this regulation
the driver of a vehicle is included in the term 'passenger'.15
The literal theory does not toleraLe a departure from the ordinary grammati-
cal meaning of words16 if the words are clear and unequivocal. With a purposive

8 Bennion 1984:200.
9 Text of Footnote
10 1964 1 SA 113 D.
11 Al116. See alsoAema Insurance Company v Minister ofJustice 1960 3 SA 273 (A)
and Jaga v Donges NO andAnother 19504 SA 653 (A).
12 19643SA533N.
13 N041.
14 26/1956(N).
15 See S v Makhubela 1981 4 SA 210 (B) where the phrase 'driving of a motor
vehicJe'in s 17 of s 57 of the Road 'fraffic Act 7 of 1973 B had to be interpreted. The
court adopted a contextual interpretation of the phrase and concluded that it was
confined to the control of a motor vehicle whilst it is being propelled by its own
mechanical power. The accused had been convicted of driving without a licence.
The evidence established that the motor vehicle was being pushed by people on a
public road, with the accused at the steering wheel. On review the conviction and
sen tence were set aside.
16 Langan 1969:29.'Where the language is plain and admits of one meaning, the task

3
 Jydskrifvir Regswetenskap 1992:17(1)

methodology words, however clear, must always be brought into line with the
intention ofthe legislature determined from the context. The latter is preferable
because the former approach could negate the authentic intention of the
17
legislature. With the value-coherent or teleological approach the intention of
the legislature is influenced and formulated in accordance with the principles of
the common law and its libertarian ethos.
InJaga v Donges NO l8 (thelocw classicus of contextualinterpretation in our
law), Schreiner JA expounded the principle that any attempt to discover the
'plain' or 'ordinary grammatical' meaning of words must include a reference to
the context in which they were used. Schreiner JA, held that the interpreter has
a choice of two techniques when applying this principle. The first technique is a
qualified contextual approach whereby recourse is only had to the context when
there is ambiguity present. The second technique involves an immediate exam-
ination of the context of the words in question and the general context of the Act
within which they are located 'having regard to the declared intention of the Act
and the obvious evil that it is designed to remedy,.l9 This is an unqualified
contextual approach. Schreiner JA suggested, no matter which technique is
ado~ted, the outcome should, 'always be the same,.20 1bis suggestion is incor-
rect 1 as the decision in S v Kola'12 clearly demonstrates. Kola's case concerned
a statutory offence for which the wording ofthe relevant provision of the statute
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

of interpretation can hardly be said to arise.'

17 Ross 1958:147, 148. Ross also uses the term pragmatic interpretation by which is
meant (146) •... not only foreseeable social effects, but also the technical acuity of
the interpretation and its harmony with the legal system and the cultural ideas on
which the system is built.'
18 1950 4 SA 653 (A) 662 'Certainly no less inlportant than the often repeated
statement that the words and expressions used in a statute must be interpreted
according to their ordinary meaning is the statement that they must be interpreted
in the light of their context.' This approach has been followed in various later
decisions. See Consolidated Diamond Mines of SouJh West Africa v Administrator,
SWA andAnother 1958 4 SA 572 (A) 599; AetIUJ Insurance Co v Minister ofJustice
1960 3 SA 273 (A) 284; S v Thole 19622 SA 90 (D) 92; S v/uJey 1962 3 SA318 (1)
321; S v Nokwe and Others 1962 3 SA 71 (1) 74; S v Bey/eveld and Others 19641 SA
269 (1) 27'2:, Hopkinson v BloemfonJein Disrict Creamery 1966 1 SA 159 0 163;
Welkom Bottling Co (Pry) Ltd v Belfast Mineral Waters (OFS) (Pry) Ltd 1967 3 SA 45
(0) 48; Community Development Board v Revision Court, Durban Central and
Another 19711 SA 557 (N) 565; and Ebrahim v Minister of the Inlerior 1977 1 SA
665 (A) 677.
19 At 662-3.
20 At 664.
21 Du Plessis 1986:107, who comments in this regard that '[t]he correctness of
this. .. obseIVation is questionable'.
22 19664 SA 322 (A).

4
 Devenish/Restrictive Interpretation

did not require mens rea, but the preamble did. The AppeUate Division, in
reversing the decision of the 'fransvaal Provincial Division, disregarded the
preamble because it considered the wording of the relevant section to be clear
and unambiguous, and therefore it decided that the preamble was not contex-
tually relevant If there had been recourse to the preamble contextual ambiguity
would have been present. This would have justified reliance on the presumption
in favorem libertatis and would have resulted in the acquittal of the accused. An
examination of Kola's case demonstrates unequivocally that an unqualified
contextual approach is both linguistically and jurisprudentially more sound than
a qualified contextual one.23 The first approach is a qualified contextual ap-
proach and as such is 'a manifestation of the working method of IiteraJism,.24
The second is an unqualified contextual approach which is compatible with a
value-coherent theory of interpretation and is both hermeneutically and juris-
prudentially more sound and is the basis on which the canons and presumptions
of interpretation in this book are expounded. 2S In the judgment of Rabie CJ, the
Appellate DiviSion, in University of Cape Town v Cape Bar Council & AnotherU,
has given sanction to an unqualified contextual methodology in regard to the
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external aid of surrounding circumstances. "Ibis was also the case in Melvill and
Another NNO v The Master and Others. 27 Du Plessis sums the position up as
foUows:
~ proper balance ought therefore to be struck between grammatical
meaning and overall context: ... recourse to contextual elements should not
only occur when the plain or grammatical meaning of the enactment
proves to be insufficient due to (inler alia) ambiguity.'

23 Devenish 1989: 106.

24 Du Plessis 1986:4.
25 This is also the approach taken by Du Plessis 1986:108.
26 1986 4 SA 903 (A) 914D·E.
27 19843 SAS387 (C) 3940. In this case Friedman J observed that '[t]here is nothing
in the Act to suggest that the context or SUbject malter requires the word "sign" to
be construed otherwise than in its ordinal)' or popular sense.. .' This is also a
manifestation of unqualified contextualism. See also NahoomspruiJ MunisipalileiJ v
Malan Park (Edms) Bpk 1982 2 SA 127 (1) 133; Oertel en Andere NNO v Direlaeur
van Plaaslike-BestuUT en Andere 1983 1 SA 354 (A) 370; and Reynolds Bros Ltd v
Chainnan, Local Rnad Transponation Board, Johannesburg andAnother 1984 2 SA
826 (W)828.

5
 Tydskrif vir Regswetenskap 1992: 17(1)

Ambigui1f8

Since language as a vehicle of communication is by its very nature qualitative

or imprecise, a word, phrase or sentence may have two or more meanings. 29
Ambiguity, as a linguistic phenomenon, plays an important role in the modus
operandi of the literal theory and methodology, and can arise mteraJia in three
ways:
a In the sphere of semantics or meaning where one word can have one or
more meanings. For instance the word 'calculated' can mean 'in-
tended' or 'likely.,30
b In the grammatical or syntactical sphere, ambiguity arises from the for-
mulation of a phrase, clause or sentence. Hahlo and Kahn make the
perceptive observation that 'the English language, because of its few
inflections to show word relationship, is particularly prone to this kind
of ambiguity'.31 They provide the following example of syntactical am-
biguity: 'the liquidator shall call upon the oompany immediately to
lodge the document" - does this mean that the liquidator must imme-
diately call on the company to lodge, or that the oompany is required
to lodge immediately.' Grammatical ambiguity can be subdivided into
into general ambiguity, where the sentence or phrase is ambiguous, in-
dependent of any particular set of facts, and relative ambiguity, where
it is ambiguous only in relation to certain defined facts. 32
=
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c In a statute, where two sections oontradict each other. An apt pie is

S v Marwane,33 in which there was a conflict between ss 7 (2) and
93(1) of the Constitution of Bophuthatswana. This is known as contex-
tual ambiguity.
Many words have multiple meanings. These are referred to as homonyms
and they must be distinguished from ambiguous words. The intended sense of
a word which constitutes one of a group of homonyms is patently clear fromits

28 Montrose 1960:76; and Labuschagne 1987:12

29 Montrose 1960:76 who defines ambiguity as follows: 'If words in a particular context
do in fact convey to different readers a range of meanings derived from not fanciful
speculation or mistakes about linguistic usage, but from true knowledge about the
use of words, then they are ambiguous.'
30 S v Beyleveld and Others 1964 1 SA 269273. The word 'coast' or 'ooastline' in our
statute law is ambiguous. See Hahlo 1959:76.
31 1973:177. The judgments in S v Christodoulou 1967 3 SA 269 (N) and S v Myende
19624 SA 426 N at 429 provide a comprehensive collection of authorities on the
nature of the syntactic ambiguity inherent in the words 'and' and 'or' and the proper
approach to the interpretation thereof.
32 Bennion 1984:203.
33 1982 3 SA 717 (A). R v Thatnoe 1927 EDL 173 is another example of contextual
interpretation.

6
 DevenishlRestrictive Interpreta tion

use, regardless of context.34 With ambiguous words the uncertainty cannot be

clarified by the immediate context. 3S Ambiguity can occur when homonyms are
abused.36 As Bennion explains
'[t]he term homonym is applied by philologists to words with the same
spelling (or sound) but different meanings. There is an obvious risk of am-
biguity when a draftsman uses a homonym without being careful to indi-
cate the meaning intended. The risk is compounded when in the same text
the draftsman alternates between different meanings.'37
When ambiguity occurs in a statute the literal or more usual meaning ought
not to prevail if that meaning is contrary to the intention of the legislature as
appears from the statute as a whole and interpreted in the light ofthe principles
of the common law and its ethos, as encapsulated in the presumptions of
interpretation. Thus if the intention of the legislature is unequivocally clear, a
departure from the literal but ambiguous meaning of wordsis justified when it
does not reflect such an intention.38
However ambiguity is not and should not be, the only criterion permitting a
departure from the literal meaning of words. Solomon JA in Dadoo Ltd and
Others v Krngersdorp Municipal Councif9 suggested a jurisprudentially more
sound criterion by observing that
'[t]he intention of the legislature is to be deduced from the words it has
used. It is true that owing 10 the elasticity which is inherenl in language it is
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admissible for the court in construing a statute to have regard not only to
the language of the Legislature, but also to its object and policy as gathered
from a comparison of its several parts, as well as from the history of the law
and from the circumstances applicable to its subject matter. And if, on con-
sideration of this nature, a Court is satisfied that to accept the literal sense
of the words would obviously defeat the intention of the legislature, it
would be justified in not strictly adhering to that sense, but in putting upon
the words such other signification as
they are capable of bearing.'40
Therefore the natural 'elasticity which is inherent in language' should also

34 Dickerson 1975:44 gives the foUowing two examples: i "If the bear escapes, the
owner shaU bear the oost. ii If he can, the buyer shall return the empty can."
35 Dickerson 1975:44.
36 Bennion 1981:192193.
37 Bennion 1984:192
38 See Thole 1962 2 SA 90 (D) 92; OK Bazaars 1929 LId and Others v Slem &
Ekermans 1976 2 SA 521 (C) 528-9; Pelers v Union and National South British
Insurance Co Ltd 1978 2SA58 (D) 6OE; and ExpaneMinislerofJustice 1978 2572
(A) 592G.
39 1920 AD 530.
40 554-555 (Italics added).

7
 Tydskrif vir Regswetenskap 1992: 17 (1)

be used to pennit a departure from the literal sense of words per se if they would
defeat the intention of the legislature.
Cowen has however observed that there are indeed 'forthright judicial
statements to the effect that it is only pennissible to have regard to indicia of
legislative intention other than the language Used,41 when there is linguistic
ambiguity. An apt example of such judicial sentiment is expressed by Maasdorp
J in Union Government (Minister of Finance) v Mack:42
'The argument of unreasonableness, injustices or mischief is useful in cases
open to doubt, and where the language of the Statute admits of two con-
structions..43
As indicated above the criterion of ambiguity plays a seminal role in the
methodology of the literal approach. Thus in Parow MunicipaliJy v Joyce and
McGregor (Pty) Ltd44 the court commented that
•... the rules of statutory aegesis are intended as aids in resolving any
doubts as to the legislature's true intention. Where this intention is pro-
claimed in clear terms either apressly or by necessary implication the as-
sistance of these rules need not be sought.'
This is a manifestation of extreme literalism and SIE van Thnder in the
preface to the fifth edition of Steyn's book indicates his disapproval of this
approach. 45
Ambiguity is required for the application of the celebrated mischief rule,
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indeed it is a sine qua non46 according to the literal method of interpretation, for
the invocation ofthis rule. With regard to the golden rule, which is a device of
restrictive interpretation, Innes CJ in Venter v R47 suggested that there were two
different approaches:
a The flISt, (a narrow approach) provides that only where the language is
ambiguous can the court construe it so as to avoid an absurd result.
This viewpoint has found strong stport in many cases. Thus Har-
court J in S v Shangase and Others observed that '[i]f the meaning of
the words of an Act is clear, the court is not concerned with the pro-
priety of the legislation or the policy of the legislature,49 and in S v Rn-
so
binson Beadle AD made the comment that, '[w]here the language is

41 O1.ven 1980: 374 at 381.

42 1917 AD 73l.
43 At 748.
44 1974 1 SA 161 (C) 165H. See also SA Anny Fund v Umdloti Beach Health
Commiaee 1974 4 SA 948 (N) 956F.
45 1981;ix.
46 Ex Pane Slata; Walker Securities (SA) Ltd 1974 4 SA 657 :659H.
47 1907 TS 910 at 914-15.
48 19722SA410(N).
49 At 434. See Builders LId v Union Government (Minisler ofF/lIQ1ICe) 1928 AD 46.

8
 Devenish/Restrictive Interpretation

plain and admits of but one meaning, the task of interpretation can
hardly be said to arise...'51
b The second, (a wider approach) permits a departure from the clear unam-
biguous language of a statute, if to do otherwise, would lead to an ab-
surdity so glaring that it could never have been contemplated by the
legislature, or where it could lead to a result contrary to the intention
of the legislature as shown by the context or by such other consider-
ations as the court is justified in taking into account.
This judgment illustrates the role and status of ambiguity in the process of
interpretation of statutes. It is submitted that the second approach, which
involves unqualified contextual ism is jurisprudentially more satisfactory than the
first approach. Furthermore Rabie CJ in the recent judgment of University of
Cape Town v Cape Bar Council andAnolhe?2 adopted an unqualified contextual
approach in regard to the external aid of surrounding circumstances, thus
negating ambiguity as a requirement for the invocation of the mischief rule. This
judgment of the AppeUate Division may conceivably have a catalytic influence
on the adoption of an unqualified contextual approach in regard to other
external aids, as well as internal aids,53 and indeed also in regard to the process
of interpretation in general.
Ambiguity must be distinguiShed from vagueness. The frequent indiscrimi-
54
nate use of these two terms is undesirable. 'Ambiguity' refers to equivocation,
whereas 'vagueness' implies uncertainty in the application of language to a
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

number of particulars. 55 This can give rise to open textured language. Ambiguity
is invariably a malaise of language, but vagueness may often have a positive
benefit.56
Moreover the concept of generality must be distinguished from both ambi-
guity and vagueness. Dickerson explains51 that 'a term is "general" when it is not
limited to a unique referment and thus can denote more than one,.58 General
terms are frequently found in statutes. Dickerson provides the following
example: 'a grandmother sometimes has heavy responsibilities' in which the
word 'grandmother' is general. Compare this with the sentence 'my grandmother
sometimes has heavy responsibilities' which could be ambiguous if both grand-
mothers are alive.59 Generality, like vagueness60 is not necessarily a malaise of

50 19754SA438(RAD).
51 Per Beadle at 442E-G quoting what he said in S v Takaendesa 19724 SA 72 (RAD).
52 19864 SA 903 A 914D-E.
53 Devenish 1989:70.
54 Dickerson 1975:48.
55 1975:49.
56 Dickerson 1975:48.
57 1975:51.
58 Dickerson 1975:51.

9
 Tydskrif vir Regswetenskap 1992:17(1)

language: it is an indispensable tool of language.61 General language may be

required to be restricted without considerations of ambiguity in the process of
statutory interpretation. However general words should not be restricted auto-
matically. The restriction will depend on the intention of the legislature. Lord
Esher MR expressed the position as follows:
'1 am not surprised to find that the modem tendency of the Courts has
been to construe general words in their ordinary sense. It cannot, however,
be doubted that there are cases in which such words must be construed in a
limited or restricted sense.'62
The literal approach relies too heavily on ambiguity as the 'open sesame,6]
of the interpretative process. Generality, vagueness and flexibility of language to
a lesser or greater extent require interpretative creativenesson the part of the
courts in their role as the interpreters of legislation. Thus ambiguity is not the
only and should not be the only characteristic of language that necessitates an
investigation into the purpose or aim of the statute. Where the legislature uses
wide or indefinite language the courts should also investigate the purpose. Thus
in Goldberg NO v P J Joubert64 the court held that '[i]n construing such phrases,
when they have no precise or exact meaning, the courts must examine the true
intent of the draughtsman or the legislature ... '

Techniques of Restrictive Interpretation

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The process of interpretation commences with the assumption65 that general

words and expressions should be given an unrestrictive meaning. 66 However if

59 Dickerson 1975:51.
60 See Hahlo and Kahn 1973:178 •...vagueness may be deliberate and possibly
desirable. The law maker may intend to leave a corona of uncertainty of meaning to
give latitude to those administering the enactment or to the courts in interpreting
the legislative provision- what is called an open texture'. See also Hart 1961:124.
61 Dickerson 1975:52.
62 Italics added.AndeT.I'on v Anderson 1895 1 OB 749 752-753.
63 Cowen 1980:43.
64 1960 1 SA 521 (1) at 523.
65 See S v Thole 1962 2 SA 90 (D) 92D where Fannin J observed that '[t]he best guide
to the intention of the legislature is the language which it has used - and the first
rule of interpretation in construing a statute is to assume that the legislature means
what it says.'
66 See BulawayoMunicipalityvBulawayo WaterworksLld 1915 CPD 435 at 443. In this
case Kotze J observed that 'general words in a statute must receive a general
construction, unless you can find in a statute itself some ground for limiting or
restricting their meaning by reasonable construction and not by aroitrary addition

10
 DevenishlRestrictive Interpretation

a strict adherence to the ordinary meaning of words would serve todefeat the
manifest or the constructive aim of the legislature, the court should depart
from the meaning indicated by ordinary literal interpretation. De Villiers J P
expressed the position as follows:
'If there are strong and weighty reasons for limiting general words used by
the legislature... the Court in the absence of a clearly expressed intention to
the contrary, is not only entitled but also bound to limit the words so as to
bring them into accord with the intention of the legislature.,67
This extract clearly illustrates the importance of legal reasoning in the
process of interpretation. Kotze JA expressed the position in Stonn & Co v
Durban Municipality68 as follows:' The principle that general words may be
modified and restricted by reasonable construction ... is beyond dispute.. .'
Moreover general language may be contextually limited to the subject
matter with which the statute deals, and consequently made to conform to the
general scheme and object of the statute. Legal language and drafting tends to
be general and unqualified and therefore it gives rise to interpretative problems.
Schreiner JA perceived the nature of the quandary by observing that:
'No commoner problem is presented to the interpreter than that of decid-
ing whether wide, unqualified words or expressions should be given their
full ambit or should be restricted, and the mere width of the language used
must rarely be a good reason in itself for holding that the words do not
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admit of a more restricted meaning,.69

In order to do this the court may invoke the maxim cum lex plus scripsi~
minus volui/.70 In English law restrictive interpretation is encapsulated within the
ambit of the golden rule. The rule was first enunciated in Grey v Pearson, 7t where
it was held that the ordinary meaning of words should not be departed from
'unless that would lead to some absurdity or some repugnance orinconsist-

or retrenchment'. See Steyn 1981:8 and Oberholzer v Johannesburg CiJy Council

19514 SA 115 (1) 118A
67 Sduka v Suskin and Sallww 1912 TPD 258 281.
68 1925 AD 49 55. See also Law Union and Rock Insurance Co Ltd v Cannichael's
mrcutor1917 AD 593; Brown v Brown 1921 AD 478 484; R vJaspan andAnother
1940 AD 9 17; Ridley v Ridley 1945 OPD 151157-8; Vo/schenk v Volschenk 1946
TPD 486 497; Kloppers v Ko-operatieve Wijnbouwen van ZuidAfriJaJ Beperla 1947 3
SA 408 (C) 425; R v JeremiJJh 1956 1 SA 8 (SR) 11 G; Mashaoane v Mashaoane
1962 1 628 (D) 635-7; R v Slaywer 1958 1 SA 701 (SWA); Agricultural Supply
Association (Ply) Ltd v Minister of Agria.dIure 1970 4 SA 65 (1) 68G; Mohr v
Divisional Council Cape 19762 SA 905 (A) 918G; and Sv Bam 1977 3 SA 494 R
69 Jago v Donges 1950 4 653 (A) 667.
70 lbis maxim means when the law enacted more but intended less.
71 185726 UR 473 (01).

11
 TydskrifvirRegswetensleap 1992:17(1)

ency with the rest of the instrument, in which case the grammatical and or-
dinary sense of words may be modified so as to avoid that absurdity or in-
consistency, but no further.'72
The locus classicus in South African law with regard to restrictive interpre-
tation is venter v R,73 which concerned s 3 of Ordinance 20 of 1905 of the
Itansvaal Colony which provided that 'any person entering this colony after the
passing of the Ordinance shall be guilty of an offence if he has been convicted
elsewhere than in this colony of certain offences'. Venter was dOmiciled, bu t not
resident, in the Itansvaal and had been convicted of an offence in the Orange
Free State. The court applied the golden rule, which it formulated as follows:
'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, the court may depart from
the ordinary effect of the words to the extent necessary to remove the ab-
surdity and to give effect to the true intention of the legislature.' 74
The court applied the second part of the golden rule and restricted the
interpretation of the term 'any person' to exclude residents of the Itansvaal,
thereby bringing the words into line with the presumed intention of the legisla-
ture. Innes CJ motivated his conclusion by observing that
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, .. .1 am not satisfied from the context of the statute itself that the legisla-
ture did not intend that residents should come within the operation of this
Ordinance,.75
Innes CJ went on to state that he 'was not prepared to say that the legiSlature
did not intend the law to apply to persons domiciled in the Itansvaal, but not
resident here at the tiine when they committed the crime'.76 Yet it may be argued
that if residents were excluded then a fortiori persons domiciled should also have
been excluded. It appears that the element of uncertainty in the application of
the section induced the court to fall back on the ordinary meaning of words. The
following statement by Steyn reflects a similar approach:
'[s]olank daar dus redelike twyfel omtrent die bedoeling bestaan, bied die
woorde self die sekerste houvas. Alleen waar die wetgewende wil volkome
duidelik en seker is, lean op die grondslag daarvan inkortend uitgele
word,77

n At 481.
73 1907 TS 910.
74 At 914-915.
75 At 915.
76 At 917.
77 Steyn 1981:33.

12
 Oevenish/Restrictive Interpretation

However uncertainty, even of a limited degree, should have been resolved

in favorem liberatis in accordance with Innes CJ's dictum, applied in the cel-
ebrated Dadoo judgment:78
'It is a wholesome rule of our law which requires a strict construction to be
placed on statutory provisions which interfere with elementary rights. And
it should be applied not only in interpreting a doubtful phrase but in ascer-
taining the intent of the law as a whole.'
Therefore Venter should have been given the benefit of the doubt and
acquitted_ Such an interpretation would have been in accordance with the ethos
of the our Roman-Dutch common law and would thus been teleological or
value-coherent.79
Restrictive interpretation is justified in order to bring words into line with
the clear Object of the act. Where such object is absent the technique of
restrictive interpretation should be used to harmonize the meaning of a statu tory
provision with the common law. Restrictive interpretation should not only be
used to bring words into line with the intention of the legislature, but also to bring
them into line with the presumed intention of the legislature when the intention
is equivocal. The presumptions of interpretation should be applied in conjunc-
tion with the golden rule and with the other mechanisms of restrictive interpre-
tation analyzed and discussed below.
Most of the cases that have purported to apply the decision in Venter's case
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to situations where the ordinary meaning of language is repugnant to the

intention of the legislator appear to be instances of restrictive interpretation of
general and unqualified language. 8O Some of the judgments which have followed
on Venter's case appear to have regarded absurd results arising from the literal
meaning of the language as sufficient in themselves to justify a court modifying
such a meaning. These decisions give the impression that avoidance of absurd
results is a canon of oonstruction in itself, independent of the ascertainment and
implementation of the intention of the legislature. Steyn is of the opinion that
this is wrong.S1 Absurdity of results is merely an indication or symptom that can
be used to formulate the true intention ofthe legislature. This issue was placed
in correct perspective by Stratford JA in Hatch v Koopoornaf2 when he observed
that
'[als I read Venter's case and the decisions on which it ~ founded, the de-
gree of absurdity or repugnance is of importance as it bears upon the inten-

78 Dadoo LuI and Others v Krugerdorp Municipal Council 1920 AD 530 at 552
79 Mureinik 1986:103.
80 Union Government (Minister of Mines) v Mack 1917 AD 731; Stonn and Co v
Durban Municipa/iJy 1925 AD 49 at 53; and R v Daniels andAnother 1936 CPO 331.
81 Steyn 1981:35.
82 1936 AD 190.

13
 Tydskrifvir Regswetenskap 1992:17(1)

tion of the enactment under discussion. If, examining results, you find ab-
surdity or repugnance of a kind, which, from a study of the enactment as a
whole, you conclude the Legislature never could have intended, then you
are entitled to interpret the enactment as to remove the absurdity or re-
pugnance and give effect to the intention of the Legislature.,83
In regard to the influence of anomalies that occur in the process of the
interpretation and application of statutes Milne JP observed that
'I agree that where the words of a statute are plain mere anomalies would
not justify a departure from their literal meaning unless they are such as to
demonstrate tha t their literal meaning is not the meaning which the legisla-
ture intended them to have,.84
InAetna Insurance Co v Minister ofJustice 85 a distinction was drawn between
far fetched anomalies and those that are more ordinary and predictable.
Cowling86 opines that judicial policy may give rise to restrictive interpretation
and thus a departure from the ordinary grammatical meaning of words. In this
regard he refers to the meritorious decision of Friedman J in S v Ramgobin.!f7 In
this judgment the Natal Provincial Division held that, despite the unequivocal
intention of Parliament in enacting the contentious no-bail proviSion of the
Internal Security M,ss it should be interpreteted restrictively. The Ramgobin
judgment is a remarkably bold one taking into account the view expressed by
the Appellate Division in Rossouw v Sacks:1'/}
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'I accordingly conclude that in interpreting s 17 this Court should accord

preference neither to the strict construction" in favour of the individual in-
dicated in Dadoo's case supra nor to the" strained construction" in favour
of the executive referred to by Lord Aikin in Liversidge's case supra , that it
should determine the meaning of the section upon an examination of its
wording in the light of the circumstances whereunder it was enacted and of
its general policy and object.'

83 Ai 209.
84 Manjra v Desai andAnother 1968 2 SA 249 (N) 2.548. See also S v Livi 1965 2 SA
787 (C) 796; Smith andAnorherv Law Society, Cape 1978 4 SA 410 (C) at 413-4;
Lipschitz v Dechamps Textiles GMBH andAnother 1978 4 427 (C) 430; and Trust
Bank ofAfrica Ltd v Secretory for InJond ~ 19784 SA 850 (C) 854.
85 1960 (3) SA 273 (A) 278. See also SA Mutual Fue &: General Insurance Co Ltd v
Bali, NO 1970 2 SA 696 (A) 7108 and Bassa v The Master andAnorher 1963 4 SA
510 (N) 521E.
86 Cowling 1987:177 at 193.
~ 1985 4 SA 130 (N). See also Bull v Minister of Home Affain 1986 3 870 (ZSC)
judgment of Beck JA at 875 overturning the judgment of Sansole J.In regard to
judicial policy seeS v TomsSv IJruce 1990 2 SA 802 (A) 807 C-G.
88 Act 74/1982.
89 1964 2 SA 551 (A) at 56>-564.

14
 DevenishlRestrictive Interpretation

A similar technique was employed by Leon J in Magubane v Minister of

Police.90 Hoexter described this as a 'revolutionary technique,91 because it is an
example of judicial interpretation motivated by public policy and not preceded
by vagueness, uncertainty or ambiguity of language as far legislative intent is
concerned. A similar approach was also adopted by Vermooten J in Magadi v
West RandAdministration Board. 92 In this case the court had to interpret section
65(b) of the Housing Act,'J3 which provides that where a tenant of a dwelling
constructed by a local authority fails to pay his rent to the local authority, the
latter can, after seven days notice, take possesion of the dwelling without a court
order. The judge in construing this section observed that it 'gives an extraordi-
nary and drastic remedy to the local authority to take the law into its own hands.
It must therefore be strictly interpreted.'94 Thus although there was no ambiguity
9S
in the provision the court adopted a strict construction.
There are certain canons or maxims of interpretation which can be employed
to interpret restrictively. These are analysed and discussed below.

90 19823 SA 543 (N).

91 1986:435 at 448.
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92 19812SA352(1).
93 4/1966.
94 At 355A See Fredericks &:Another v Stellenbosch Divisional Council 1977 3 SA 113
(C), a case involving the demolition of squatter shacks in terms the Prevention of
Illegal Squatting Act 52 of 1951,where demolition had taken place without prior
notice. Diemont J insisted that it was 'right and proper that the Supreme Court
should state firmly and clearly that the law must be obeyed to the letter'. See also
More v Minister ofCo-operarWn &: Deve/opmeru andAnother 1986 1 SA 102 (A) at
113-14.
95 Cf the unreported case of Kerchoff v Minister ofLaw &: Order &: others (14 August,
No 1912186) (Kriek, Thirion & Law JJ) who in interpreting the emergency
regulations made in terms of the Public Safety Act 3/1953 commented that 'if the
provisions of a section are clear and uunambiguous, there would be no room for
restrictive interpretation of those provisions, based on the supposed notion that
parliament did not intend oonsequences which are harsh or even unjust... (The
Court) is not entitled by verbal nicety and forced construction to stultify the law by
altering the clear wording of a provision in an attempt to mitigate the rigours of an
enactment.' See Cockram 1974:84. Galgut AJA took an even more restrictive
approach in Soja (Pry) Ltd y Tuckers Land andDeve/opmou Corporation (Ply) Ltd
1981 3 SA 314 (A) at 331C-D when he observed that '[e)ven where a strict
construction is required in statutes which interfere with elemental)' rights, the
intention of the legislation as a whole must be ascertained when interpreting
doubtful'M>rds'.

15
 Tydskrif vir Regswetenskap 1992: 17 (1)

Cessante ratione legis, cessat et ipsa lex. 96

This maxim means that if the reason for the law falls away the law falls away.
97
In general it has no application to contemporary statute law. Our courts have
98
consistently adopted the view that only the legislature can repeal statutes.
Thus a statutory provision cannot be abrogated bydesuetude and changed cir-
99
cumstances are insufficient to effect the negation of such a law. This flows
from the principle of legislative sovereignty which applies in our law. The re-
nowned 19th century English legal philosopher John Austin explained the po-
sition as fOllows:
' ... in statute law, the law is one thing, the reason another; the law, as a com-
mand, may continue to exist, although its reason has ceased .... [the law is]
the solemn and unchanged will of the legislator, which the judge should not
tOO
take upon himself to set aside..:
However the converse applies to the common law: here abrogation by
desuetude, is accepted. Green v Fitzgerald and OthersHJt is the classic example of

96 This maxim means if the reason for the existence of law falls away, then the law itsel[
falls away. See Hiemstra and Gonin 1981:167. See also Grotius' 1.2.23 and Broom 's
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Legal Maxims, 1900 where the words o[ Willes CJ in Davis v Powell Willes 46 cited
arg 8 C B 786 are quoted 'Reason is the soul of the law, and when the reason of any
particular law ceases, so does the law itself'.
97 Note the pre-l806legislation, of which only a few statutes of the Staten-Generdal o[
the Netherlands and cenain plaacaten of the states of Holland, received at the Cape
of Good Hope, are still extant. Such legislation is considered as a manifestation of
common law and is thus susceptible to abrogation by desuetude. See R v Daody
1926 AD 198; and Muller v Grobbelaar 1946 OPD 272 at 276. Thus no formal
procedures are necessary for the abolition of such legislation. See in this regardR v
Paa 1946 AD 845 and Du Plessis 1986:4.
98 Thus these statutes are 'of potentially perpetual existence'. See Hahlo and Kahn
1973:172. Pre-Union legislation (1806-1910) is partially susceptible to abrogation
by desuetude, because in the Boer Republics the rule of Roman-Dutch law applied
which permitted abrogation by disuse, whereas in the two British colonies such
abrogation did not apply. See Hahloand Kahn 1960:39 40 and Du Plessis 1986:20.
99 Hahlo and Kahn 1973:174.
100 LeclUresonJurisprudmce II, (1885), 631 Lectxxxvii as quoted by Milton 1967:434.
1011914 AD 88 at 103. See also Seaville v Colley 9 (1891-2) SC 39; and Head and
Fonuin v WoolaslOnNOandde Vdliers NO 1926 TPD 549 558. aLTAEnginecring
Co Ltd v Seacallnvestments (Pry) Ltd 1974 1 SA 747 (A) 770H where Jansen JA
pointed out that 'the mere fact that our Couru have overlooked and were unaware
of a rule of our common law ... does not serve to excise that rule [rom our law ... On
the contrary, the eminent equity of the rule demands its continued recognition
unless there is some obstacle such as stare decisis or ... or whether the rule has bee

16
 Devenish/Restrictive Interpretation

the latter, in which the Appellate Division held that adultel)' was no longer a
crime in our common law. The process of the interpretation and application of
the common law may necessitate the invocation of the maxim. In Simons &
Others vBoard o/Executors, Cape Town 102 (which dealt with theLaCincia)Juta
JP observed that 'I think it is a proper thing to consider the reason for the law,
and whether it still exists.'
Nevertheless the brocard cessante ratione /egis, cessat et ipsa lex has been
skillfully applied by the courts to suspend the operation of a provision a statute
where the circumstances justified it. lm Section 10(1) of the Stock Theft Act 104
stipulated that a court must, in addition to the ordinal)' penalty for stock theft,
impose a compensatol)' penalty. The court in R v MbamaJi and Xaba l05 adopted
a rigid literal approach to the said s 10(1) holding that:
'the prOvisions of the statute are imperative. There is nodifficulty of inter-
pretation at all. It cannot be suggested that under provisions of the Statute
the duty laid upon the magistrate under section lOis not to be performed
where compensation has been made by private arrangement between the
parties.'l06
However in R v Nteto 107 Gane J, in stark contrast, adopted a teleological
approach to the section by stating that
•... 1 think the objeclofsection 100f Act 26 of1923 is tosecurecompensa-
tion to complainants; and once however that object has been secured, and
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the necessity of the compensatory fme faUs away'.

This is a value-roherent interpretation, pursuant to the uncertainty of the
legislature's intention. In the absence of a clear expreSSion of the legislature's
actual intention, it is necessal)' to have recourse to the legislature's presumed or
constructive intention which is encapsulated in the presumptions of interpreta-
tion and which as a whole favour individual liberty. lOS In general the maxim is

abrogated by disuse...'.
102 1915 CPD 479 at 506. Head and Fortuin v Woolaston NO & De Villiers NO 1926
TPD 558; Lekhari v Johannesburg City Council 1956 1 SA 552 (A) 570; The Slale v
Maharaj 1962 (4) 615 (N) 617.
103 See Du Plessis 1986:153 who comments that ' ... the ratio cannot be invoked for the
purposes of a "general" abrogation of the proviSions of an enactment: the
applicability or non-applicability of each must be determined on an ad hoc basis...'.
104 2611923. This act has been amended and no longer makes provision for a
compensatory fine. as 300 of the Criminal Procedure Act 5111977.
1051938 NPD 2. SeeaIsoRvMaleka 19290PD 171.
106 At 6 italics added.
1071940 EDL 304. See alsoR vGarmeni 1947 4 SA 611 (I); andSv lVyali 19621 SA6
(I).
108 Pearce 1981:811. See WlUis 1928:1 at 17.

17
 Tydskrif vir Regswetenskap 1992:17(1)

109
not frequently applied and is, according to Du Plessis, sometimes applied
11o
incidentally without express articulation.
Steyn suggests that the application of the maxim in De Kock v Resident
Magistrate of CaJedonlll would have led to a 'juister en meer bevredigende
bevinding'. In this case the court had to interpret a statute 112 which stipulated
that: 'no person in any district where not less than two attorneys practice, shall
be admitted and enrolled as an agent.' In this judgment de Villiers cr adopted
a literal approach, reasoning as follows:
'The safer course is ... to observe the literal and grammatical sense of the
words employed, and to leave it to the Legislature- which is always at hand
for the purpose- to amend the law in case such a construction should not
carry out its real intention.' He explained that the justice of the situation re-
quired a teleological interpretation but he refused to foUow it because:
'If the court were allowed to speculate as to the intentions of the Legisla-
ture, independently of the language used, it would havelittle doubt as to the
applicant's right to be admitted as an agent,l13
Had the judge been Innes el, instead of De VJlIiers cr, the decision could
conceivably have been different, particularly in the light of the jurisprudential
114
approach taken by Innes in Dadoo's case referred to and quoted above.
The maxim cessant ratione legis, cessat et ipsa lex cannot be applied as a
technique for negating the complete operation of a statute. Rather it should be
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employed as a device of restrictive interpretation whereby the court gives effect

to the intention of the legislature in particular circumstances which justify the
suspension of the operation of a statute. 1lS
In Labuschagne v Labuschagne116 the court declined to apply the maxim.
Wessels JA holding that ' ...die aanwendingsgebied van die stelreel beperk is tot
gevalle waar die ratio in sy geheel vasgestel word en die omstandighede van 'n

109 Simons and Others v Board of ExeCUWTS, Cape Town 1915 CPD 479 506; Head and
Fortuin v Woolalon NO and de VUliers NO 1926 TPD 549 558; Lekhari v
Johannesburg City CoWICil1956 1 SA 552 (A) 570; S v Maharaj 19624 SA 615 N
617; LabuschognevlAbuschogne 1967 2 SA 575 (A) 587-588; andAvaAir (Pty) Ltd
v BoroudJ ofVryheid 19731617 (A) 626.
110 In this regard Du Plessis 1986:20 refers to Venter v R 1907 1'5 910; and Storm and
Co v Dwban MunicipaIily 1925 AD 49 at 53.
111 (1896) 13 SC 386.
112 S 8 of Act 43{188S.
113 Al388.
114 1920 AD 530 552.
115 The proper scope and effect of the maxim was carefully explained in lAbuschogne v
lAbusclUJgne 1967 (2) SA 575 (A) at 587. The maxim was also considered inState v
Mahoraj 1962 (4) SA615 (N) 617 but the court refused to apply it.
1161967 (2) SA 575 (A).

18
 Devenish/Restrictive Interpretation

geval duidelik daarop dui dat daardie ratio nie bestaan nie'.
The maxim was apptied in S v Mujee ll7 in which Gubbay explained its
application as follows:
• It seems to me that, if ever there was a case in which the maxim applies, it
is the present. The ratio for the contribution order was to compellthe ac-
cused- in fullfilment of his parental duty of support to contribute towards
the cost incurred by the certified institution in maintaining his child. That
ratio fell away completely with the removal of the child from ... the institu-
tion .. .It was only in consequence of an administrative oversight that the
order was not contemporaneously revoked ... I am satisfied, therefore, that
a contravention of... the Act is dependant upon the order being validly in
force. The instant order cannot be so regarded since at the material time
the payee had no right to receive payment under it. It cannot 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.'

Eiusdem Generis

This welJ known maxim, which literally means 'of the same kind', is a contex-
tual device that can be employed to restrict the meanini of general words by
reference to specific words in their immediate vicinityY When the particular
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words employed are descriptive of various species of a single genus and are
followed or preceded by general words, the latter may be limited so as to be
descriptive of the species of the relevant genus. By genus is meant a 'common
denominator' .119 Cross advances two reasons for the ru Ie:
'One reason for the rule is that the draftsman must be taken to have in-
serted the general words in case something which ought to have been in-
cluded among the specifically enumerated items had been omitted; a fur-
ther reason is that, if the general words were intended to have their ordi-
nary meaning, the specific enumeration would be pointless.' 120
Bennion is of the viewpoint that this maxim is 'an instance of ellipsis, or
reliance on im~cation'UI and that the nature ofthe genus is inferred from the
express words.
While the rule may be a very useful rule of language,l:13 it is only one of a

117 1981 (3) SA 800 (Z) 802-3.

118 Maxwell 1984:297 and Bennion 1984:828.
119 Colonial Treasurer v Rand Waler Board 1907 TS 479 at 484.
120 1976:116.
121 1984:828. See also Williams :110.
122 Bennion 1984:830.

19
 Tydskrif vir Regswetenskap 1992: 17(1)

host of conflicting canons of construction. Thus it should not be automatically

invoked whenever general words are preceded or followed by ~rticular words
and thus must be applied with considerable circumspection. l24 The maxim
should only be applied to give effect to the unequivocal object or purpose of the
legislation when there is no doubt about the intention of the legislature. Where
there exists doubt the maxim may be used to give effect to a contextually relevant
presumption of intention which reflects the prin~les of the common law.
l25

Therefore the rule emlxxlies only a presumption and must be applied with
caution. Where words have a wide meaning they oUght not to be mechanically
curtailed on the ground that they are merely associated with other more specific
u7
words.
S v Buthelezi l28 provides an apt example of this rule. In this case a statute
made reference to 'any place of entertainment, cafe, eating house, race course,
or premises or place to which the public are granted to haveaccess'. It was held
that the words 'or premises or place to which the public are granted to have
access' should be interpreted eiusdem generis and therefore were not inclusive
of, for example, a court room or a police station. In oontrast the court in S v
1
Sayed 'l9 had to apply a statute which prohibited the obstruction of free passage
along a public street 'by means of any wagon, cart, or other thing whatsoever'.
Even though a genus or common denominator could be clearly inferred from
the particu lar words, the court declined to interpret these words eiusdem generis
and decided that the prohibition included an obstruction caused by 'full boxes
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of vegetables, , holding that the words 'or other thing whatsoever' were clear and
unambiguous in the context in which they are used.
In S v van der Merwe130 the ltansvaal Provincial Division had to interpret
the phrase 'fuel in relation to a motor vehicle... includes diesel oil, gas, petrol, or
any other substance capable of being used asa fuel'. Theoourt held that although
a genus oould be clearly inferred but because the wording of the provision was
sufficiently clear there was no justification for applying the eiusdem generis rule
in deciding whether a respondent had contravened a statutory regulation by

123 Cross:117.
124 R v Nolte 1928 AD 377 at 382. According to Solomon CJ 'the rule itself is one that
has to be applied with caution, and is not of general application'.
125 Cf Steyn 1981:31. Steyn is ofthe view that 'as daar twyfel aangaande die bedoeling
besta~, moet die algemene woord sy gewone betekenis toeg~ word.'
126 In this regard Steyn 1981:41 states 'Hierdie reel druk eintlik nie meer as 'n
vennoede uit nie, en sou ook wei onder die vennoedens by die uitleg van welte
geklassifeer lean word.'
127 De ViUiers v PretlJrW Municipality 1912 TPD 626 at 633-634.
128 19793 SA 1349 (N).
129 19622 SA 128 (C) 129.
130 1977(2) 774(1).

20
 DevenishlRestrictive Interpretation

using a fuel known as methanol in his motor vehicle and exceeding the speed
limit.
The eiusdem generis rule is concerned with the phenomenon of generality
of language which must be distinguished from ambiguity. As discussed above
ambiguity should not be the sole criterion for its application, but inter alia the
degree of clarity of language should be inversely proportional to the probability
of the maxim's application. l3l Thus the clearer the language is the less the
likelihood that the maxim should be applied. This is a more scientific approach
to follow than relying exclusively on ambiguity.
Where particular words are sufficiently detailed as to exhaust the entire
genus, general words following particular words may even extend the latter or
they may have been inserted a abundanti cautela. 132 The sequence of the words
is irrelevant and the maxim may be applied whether a general word precedes,
appears in the middle, or follows specific words. However the contrary has been
held in South Africa,133 as well as in the United Kingdom. l34 Such a limitation is
contrary to contextual and purposive interpretation and is also illogicaJ. 135 Fur-
thermore, unless the particular words used are indeed descriptive of a species of
a common category, or genus, there is no room for the application of the rule
since it would then 'be founded not on principle, but on caprice,.l36 Therefore
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131 See Jago v Donger NO & Another; and Bhona v Donges NO & Another 1950 (4) SA
653 (A) 664E·R
132 This phrase means out of abundant caution. See further Carlis v Oldfield 4 HCG
379 at 383 in which the court held that '[tJhe enumeration of particular things is
sometimes so complete and exhaustive as to leave nothing which can be called
eiusdem generis. In such a case we must have recourse to the rule that 'if the
particular words edtaust a wholegmus, the general words must refer to some larger
genus.'
133 R v Nolle 1928 AD 377 at 382. In this case Solomon CJ explained the application of
the maxim required ~ a rule, general words following specific words ... If that is the
rule, then it has no application in this case, for here the general words precede and
do not follow the specific ones.' Cf Commissioner ofCustoms v Joffe 1934 WLD 8 at
12. See also Exparte Behrmann 1958 (3) SA 660 (N) 662 and S v Arenstein and
Others 1963 2 SA 599 (N) 600G where Caney J stated: '1 do not doubt that
subsequent specific words can have the effect of controlling earlier general words in
appropriate circumstances; the matter is one of interpretation...'.
134 R v Edmundson (1859) 2E&E77, 28UMC213.
135 Alli v PretoriaMunicipal Council 1908 TS 1120. CfEastem and Tele!7aph Co v Cape
Town Tramways Co 17 (1900) SC 95; The King v Brink 17 (1901-1903) EDC99; and
Union Government v Thompson & Co 1912 AD 744. As far as the question of genus
is concerned see S v Rooza 19632 SA 317 (C) 318; Hardman NO and Others v
AdministratorNatal 1975 1 SA 340 (N) 342H; S v Mohloba enAndere 1975 3 SA 66
(1) 69E·F; S v Wood 19761 SA 703 (A) 707; Secretary for InlandRcvenuev Charkay
Propenes (Pry) Ltd 1976 4 SA 872 (A) andSv Venter 19791 SA 135 (I) 138.

21
 Tydskrifvir Regswetenskap 1992:17(1)

the maxim should not logically apply where the particular words do not fonn
part of a genus. For example the court in S v MaJcand igona 137 had to interpret s
3(c) of the Prevention of Corruption Act l38 which referred to 'any receipt,
account or other document' and on interpretation it was held to include the
issuing by a driving examiner of a certificate of competency indicating that a
woman had passed a driving test when in fact she had not The court correctly
declined to apply the eiusdem generis rule because a genus could not be inferred
from the specific terms 'receipt' and 'account' and thus the conviction of the
accused was upheld. 139
The decision in Sacks v City Council of Johannesburgl40 provides an exem-
plary illustration of how the maxim should be applied. A traffic by-law provided
that 'no person shall sit or be on any street, nor shall any person stand, congregate
or walk or otherwise act in such manner as to obstruct the free traffic .. .'. The
accused, a prominent trade unionist, had in the course of addressing a crowd
(which had gathered to hear him speak during an industrial dispute) from a car
in a public street, caused the obstruction of the flow of traffic. As a result of a
contextual examination and evaluation ofthe law in the light of other conduct
mentioned in the by-law and other by-laws relating to obstructions contained in
a chapter dealing with this su bject,the court141 inferred that the object of the law
was to make punishable only conduct which caused an obstruction by the direct
physical act of a person. Thus the phrase 'or other act' had to be read eiusdem
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

generis to give effect to the Object of the statute. Sacks' case might conceivably
reflect the 'inarticulate premise,142 of judicial sympathy to liberal values like
freedom of assembly, and an executive minded judge, iike Steyn CJ, would in all
probalility have reached a different conclusion. The context plays a seminal role
in determining whether the rule should be applied. In Grobbelaar v Van De
Vyverl43 Schreiner JA commented that
'it is poosible to see from the context that it is unlikely that wide words were
intended to have their full width, and then the specific words may furnish
the lines on which the obviously necessary restrictions should be made.' 144
This approach was followed in the Rhodesian case of R v ChiLsa.' 145

136 AUi v Pretoria Municipal COCUICill908 TS op cit 112A.

13719814SA439(ZAD).
138 Chapter 10 of Zimbabwe.
139 A1444.
140 1931 TID 443.
141 Per KrauseJ.
142 Dugard 1977:374.
143 1954 1 SA 248 (A).
144 A1254.
14519662SA34(R).

22
 Devenish/Restrictive Interpretation

In R v Bono l46 Van Winsen J observed that it is necessary to 'consider the

scope and objects of the eriactment sou~ht to be interpreted and one must
consider the mischief at which it is aimed' 47 in reaching a decision not to apply
the maxim in construing a Cape Thwn municipal regulation which provided that
'no person should collect money in the public streets, whether for charitable
objects or otherwise'. It was held that this regulation included political Objects
within its ambit. !fin this case it had not been possible to ascertain the object or
purpose of the act with certainty then the court should have had recourse to the
principles of the common law as encapsulated in the so called presumptions of
interpretation and in particular to the specific presumption that the legislature
does not intend that which is harsh, unjust or unreasonable. The application of
this presumption in Bono's case would have resulted in the accused being given
the benefit of the doubt. Thus '[w]here a statute is reasonably capable of more
than one meaning, a court of law wiD give it the meaning, which least interferes
with the liberty ofthe individlial,.l48
Our courts have held that .the eiusdem generis rule can be applied even when
there is only one particular word preceding a general word or phrase. 149 Yet
where 'there is only one particular word it is more difficult to apply the doctrine,
than when there are a number of them'Yo The maxim is a mechanism of
contextual interpretation, and each case should involve careful evaluation.
Noscitw a sociis.J51
The eiusdem generis rule is a manifestation of the general phenomenon of
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

contextual interpretation which is encapsulated in the maxim noscitur a sociis.

According to this maxim particular words are coloured by their association with
other words. The application of the rule is weD iDustrated in R v Greeniand 152
where the court had to construe the term 'recklessly or negligently' in relation
to a driving offence. In this regard Beadle CJ observed:
'Only one offence of driving recklessly or negligently is created; this being
so, it seems to me that this is a case where the maxim noscitur a sociis

146 19533 SA 506 (C).

147 A1507H.
148 R v Sachs 19531 392 (A) 399H.
149 Van Wermeskerken v Johannesburg Municipality 1913 TPD 540; Director of
Education, Transvaal v McGagie and Others 1918 AD 616 at 623;
Gemeenskapsontwikkelingrraad v Maxim Township Development (Pry) LId 1973 2 SA
71 (A); Ovenstone vSecretmyfor Inland Revenue 1980 2 SA 721 (A);S v Cocklin en
'nAnder 1971 (3) SA 776 (A); and Santam VersekeringsmaatskappyBpkvKruger
19783 SA 656 (A) 663.
150 Van Wermeskerkm case 1913 TPD 540 542
151 The meaning of a word is inferred from that of its accompanying words or 'aan sy
maats word by geken'.
152 19621 SA 51 (SR).

23
 Tydskrifvir Regswetenskap 1992:17(1)

should be applied in interpreting the meaning of 'recklessly." 153

lS4
Another example is provided by the English case of Scales v Pickering
where the court was concerned with the meaning of the word 'footways' which
appeared in the phrase 'the soil and pavement of roads, highways, footways,
commons, streets and lanes, passages and public places.' In construing this
phrase Best J observed that
'Construing the word 'footways' from the company in which it is found
... the legislature appears to have meant paved footways in large towns
which are too narrow to admit of carriages and horses.'
The noscitur a sociis principle was employed in Mader v Mallin Diamond
Mines Ltd. 15S Here the court had to interpret the word 'cession' in section 1(1)
of the General Law Amendment Act 156 The oourt held that its true meaning
had to be gathered from the opening words of the section relating to contracts
of sale and that noscitur a sociis the word 'cession' should be limited to contracts
to cede any right to or interest in land for a fixed or ascertainable price.
In R v Charles and Anotherl57 the accused had been found in possession of
certain car radiators, the fins of which were made of oopper, and as a conse-
quence he was convicted of being in possession of a 'copper section' in terms of
section 29 (1) (b) of the Copper Control Act.158 Prima facie such copper was a
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

copper section if the word 'section' was given its ordinary meaning. However on
appeal Davies J held, oonstruing the word 'section' noscitur a sociis and in a
technical sense, that it had a special meaning of a particular type of copper
conductor. Accordingly the conviction was set aside.
In Local Investment Co v Commissioner of Taxes 159 it was held that noscitur
a sociis was a 'rule ... which must be applied with caution, and as with most aids
to interpretation is only of assistance if there is some ambiguity in the lan-
guage...'IOO As indicated above ambiguity should not be the exclusive criterion
for the application of a contextual maxim.

153 A153D·E.
154 (1828) 4 Bing 448.
155 1964 1 SA 572 (1) 576.
1566811957.
157 1966 4 682 (R).
158 Ch 226 (R).
159 19583 SA 34 (SR).
160 A139.

24
 DevenishIRestrictive Interpretation

161
Reddenda singula singalis

This maxim is a rule of construction used to refer each phrase or expression to

its appropriate object.l62 The maxim recognizes that(context permitting) the
reader may properly infer that the author has intended a distributive relation-
ship between two juxtaposed series of ideas. Dickerson gives the following
example 'men and women may become members of fraternities and so-
cieties,.l63 Singer correctly points out that this rule 'may be outweighed by
other considerations'.164
As with the eiusdem generis rule, this rule should not be applied mechan-
ically.

Conclusion

The interpretation of words in a statute depends inextricably on their context.

The context is always relevant regardless of the clarity of the words used. Thus
an unqualified contextual approach is superior to a contextual one. The
maxims eiusdem generis, noscitur a sociis and cessanle ratione legis, cessat et
ipsa lex are contextual aids intended to facilitate the determination of the in-
tention of legislature. They should not be applied mechanically because they
Reproduced by Sabinet Gateway under licence granted by the Publisher ( dated 2012)

are a means to an end and not an end in themselves. In general the maxims
should not only be applied where there is ambiguity. Their application should
depend on interaiiawhether the intention ofthe legislature justifies it, and not
merely on whether words or phrases appear to be ambiguous. Elasticity and
the degree of clarity of language are more satisfactory scientific criteria to jus-
tify a departure from the ordinary grammatical meaning of words than ambi-
guity as an exclusive criterion.

161 Also ccpressed applicando sinl¢a sin~.

162 Black 1979: 1148. According to Hahlo and Kahn 1968:177 the literal meaning of this
maxim is 'by assigning or applying each to each, ie each special provision, condition,
etc., to the particular subject to which it is referable'.
163 1975:233.
164 Sutherland SlOlUlory Construction, 2A, 216 para 47.26.

25
 Tydskrif vir Regswetenskap 1992:17(1)

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