Study unit 5

Theoretical foundations:

General principles:
 Hermeneutics is the science of understanding and is a theory of interpretation of
texts. The exploration of texts to reveal their inherent meaning.

There are similarities and differences between Christina Theological

interpretation and hermeneutics, as they developed around the same time
periods.
Similarities:
1. Both aim to interpret established authoritative texts with regards to current
concrete situations
2. Bothe have an existential urgency, the interpretation of Scriptures is to
provide salvation to the sinner and statutory interpretation aims to find legal
certainty and order.
3. In both disciplines the interpreter must deal with the demands of changing
situations and circumstances.
4. Both interpreters are influenced by history
Differences:
1. Both have their own style and their own rules
2. Biblical texts are closed (complete) where as legislative texts continue to
develop and are open.
Modern critical theories:
Postmodernism-
 argues that utopian promises from the modern world-view came to nothing.
 It states that the modernists tried to explain and order the world with macro-
arguments, but still could not solve global issues that we still face.
 Believing that these macro-arguments were based on naïve humanism and that
our belief in science and technology gives us a false sense of optimism about the
ability of language to compile, disseminate and interpret information.
1. It rejects the idea that classifications and categories can be correct and
final
2. With notions that both objectivity and subjectivity are questioned
3. Everything, including knowledge is relative, temporary and incomplete

1. The critical legal Studies Movement (CLS)- formed as a result of the in

abilities of Liberalism to solve social problems such as poverty and
racism.
 In the process of liberalism-
o the outcasts and disadvantaged of society are pushed to the margins of
society.
 Does not have an alternative program of action to solve these problems, instead
it attempts to unmask the liberal argument that law is subjective and neutral.
 The western legal system is an instrument of social and economic operation,
supporting the existing power structures and simply enforces them.
 These promises are maintained by right rhetoric, concealing the political role of
the legal system
 Believing that law and politics have merged
 Criticism raised by CLS
i Within the liberal legal tradition there are rules based on hidden political
and ideological considerations, rules only change as a result of changes in
the political arena
 ii The entire world-view is encoded and interpreted in terms of liberal legal
tradition. For liberal legal tradition is based on individual autonomy, not
taking communitarianism and community involvement into account.

iii Regarding interpretation of statutes, CLS stares that legal theories and
legal reasoning are supported by political considerations and the existing
political and social balance of power is consolidated.

2. Deconstruction- a reaction against structuralism.

 It is impossible to obtain knowledge of the real objective world.

o All meaning takes place within the framework of language; thus, it is
subjectively analysed
 Meaning of symbols depends on the difference from, as well as the similarities
between them and other symbols in the system.
 A text is never closed or finished,
o it simply consists of a network of interlined symbols which infinitely refer to
each other.
 Meaning s not determined by the author, but instead by the relations between the
texts and between the text and the reader
 A text can never acquire a fixed or final meaning, meaning depends on a set of
codes, social, cultural and political codes
 A text does not inherently lead to one meaning, texts may lead to many different
subjective interpretations and meaning
 Meaning is always disputable
 Statutory interpretation requires an ongoing reinterpretation of the past
 A text can only acquire a fixed meaning through its context
 Interpretation is not neutral and value-free
 3. The linguistic turn- the critical thinking about language

 Meaning is not discoverable in a text, instead it is made by dealing with the text
 Meaning is never a fixed and stable presence
 The possibility of meaning is endless
 Language is the hyper-complex, boundlessly open system that makes that such
proliferations of meaning possible

South African theories of interpretation:

Texted-based approach-
o the interpreter should concentrate primarily on the literal meaning of the
provision to be interpreted
 If the meaning of the text is clear,
o should be applied as the legislatures intended
 If the plain meaning of the words is ambiguous, vague or misleading or the strict
application thereof would result in absurd outcomes,
o the court may deviate from the literal meaning. This is known as the
‘golden rule’ of interpretation. Then the courts will look at ‘secondary aids’
to interpret the legislation in order to find the meaning of the legislature
 Only when secondary aids provide insufficient aid,
o will courts have the right to look at ‘tertiary aids, such as the common-law
in certain circumstances
 As a result of the separation of powers,
o the courts abilities are limited to interpretation and the application of the
will of the legislature
 Criticism of the text-based approach
o The normative function of the common-law is reduced to a last resort
o The narrow approach to words and their primary meaning are regarded as
the primary in legislation
 o It means that the interpretation of legislation is ultimately based on how
clear the language in the legislation is
o It leaves little room for judicial-law making
o Important external aids are degraded and even ignored
 Important internal & external aids are ignored unless the textual
meaning is unclear.
o Few texts are so clear that only one interpretation is possible.
o Leaves little room for judicial law-making. (Courts seen as mechanical).
Strict adherence to trias politica.
o Principle that no addition or subtraction from the legislative text is possible
is a misunderstanding of the separation of powers doctrine.

The text-in-context approach

 The legislative function is a purposive activity,
o the context of legislation includes social and political policy directions are
also taken into account
 In cases where a literal, text-based approach fails,
o this can provide a balance between grammatical and overall contextual
meaning
 Interpretation of legislation cannot be complete without taking that objectives
and scope of the legislation into account
 Mischief rule: Acknowledges application of external aids: common law prior to
enactment of legislation, defects in the law, new remedies provided by
legislation, true reason for remedies
 Balance between literal meaning and overall contextual meaning
 Common-law presumptions and aids of interpretation are central
 Courts have inherent law-making discretion but is qualified: Modification of the
text is possible only if the scope & purpose are absolutely clear.
 Power to modify is not an infringement of trias politica but a logical extension of
powers.
 Jaga v Donges: Judge identified guidelines for interpretation:
o From outset → wider context of provision into consideration.
o Irrespective of clear meaning, contextual factors must be taken into
consideration.
o Sometimes context more NB than text.
o Once meaning of text & context determined → it must be applied
 The techniques can be identified in the following dictum from:
o Minister v Land Affairs v Slamdies 1999:
 The purposive approach made clear by the CC requires;
1. Ascertain the meaning of the provision an analysis of its purpose and,
2. have regard to the context in the sense of its historical origins,
3. have regard to its context, the statute as a whole, the broad objects &
values underlying it,
4. have regard to its context, the particular part where the provision is or
part where the provision is interrelated,
5. have regard to the precise wording of the provision.
Influence of the Constitution
 Most academics before 1994, followed the text-in-contexts method of
interoperation
 However, since the constitution, the debate between text-in-context and the
text-based approach has become irrelevant, since both s35(3) & S39(2) expressly
stated mandatory interpretation provisions

Constitutional Supremacy:
 S1 of the Constitutions is the foundational clause-
a. the republic of SA is sovereign, democratic and founded on values of
human dignity, equality and advancement of human rights and freedoms
 S2 supremacy clause-
a. the constitution is the supreme law of the Republic
 S39(2) the interpretation clause-
a. when interpreting any legislation and when developing the common law
and customary law, every court, must promote the spirit, purpose and
objectives of the Bill of Rights.
 Constitutional values- the constitution is the yard stick which all law is measured
against and is supreme to all law.

The Constitution & statutory interpretation

 Section 39(1) deals with the interpretation of the Bill of Rights. Discuss whether
this section is also relevant to the interpretation of ordinary legislation.
 Section 39(1) says in effect the Bill of Rights should be interpreted in the light of
the foundational provisions of the new democratic constitutional order.
 Those values are found in the preamble and paragraph 1 of the Constitution.
 Section 39(1) says nothing about ordinary legislation but section 39(2) says the
spirit of the Bill of Rights must be promoted when ordinary legislation is
interpreted.
 Thus the two must be read together.