Study unit 6

A Practical, Inclusive Methodology: the 5 interrelated Dimensions of

interpretation

6.1 Language Dimension:

 The text-based approach no longer has any relevance in statutory interpretation.

 Due to the fact that purpose and meaning of the legislation and the context
provided by the Constitution is what gives legislation its meaning.
 The process of impetration starts at reading the legislation concerned and looking
at the ordinary meaning attached to the words. Then is continued by applying
influencing factors such as the Constitution and the aims of the legislation.

Every word is important-

 a principle that states meaning is assigned to every word and that is derived
from the rules of that word, so it is understood according to its meaning.
 Meaning now legislation should be interpreted that any word is redundant.
 However, in Inland Revenue v Somers Vine 1968, the court, held that this rule of
meaning being assigned to every world is not absolute.

No addition or substitution-
 the rule of impetration that there may be no additions to or subtractions from the
words used in the legislation.
 Based on the separation of powers. As the court may not take away or add to
the law.
Continuing time-frame of legislation:
 the law is always speaking- questions whether one should interpret the
legislation in a manner that is relevant today, or in the manner it was written in.
 At first courts held that unless new legislation stated otherwise, it should be
interpreted as the day it was construed. Which was confirmed in the judgment
of Minister of Water Affairs and Forestry v Swissborough Diamond Mines Pty in
1999.
 However, in Golden China TV Games Centre v Nintendo Co Ltd in 1997, it was
suggested that the definitions in an Act, were to be interpreted flexibly.

6.2 international language aids to interpretation:

 When legislative text is in another official language- before the commencement

of the Constitution, there were two official languages , that text could be
recorded in and there were sources of texts that were used for clarification in
other languages.

Original legislation:
 Before English was the official language, legislation was singed in the language it
was created and when there was irreconcilable dispute between two forms of
legislation, the singed document would prevail.
 As stated in the 1961 and 1983 Constitution, however the 1996 Constitution
makes no reference to irreconcilable disputes between legislation. I
 It does state in s240 that English texts will prevail above all other languages.
 Du Plessis v De Klerk- the CC referred with approval to the existing position
regarding conflicting versions of the same legislative text. In terms of item 27 of
Schedule 6, the provisions are not affected by the safekeeping of legislation
passed before the Constitution of 1996.
 In s82 & 124 the Constitution also states that the versions of new national and
provincial legislation which has been signed by the president or the provincial
premier, has to be entrusted to the CC for safekeeping.
 However, just because some legislation is now signed does not mean it carries
more weight, simply because of that, as it:
 The singed version is conclusive only when there is an irreconcilable conflict
between different versions – Handel v R in 1933.
 If one version has a wider application, the common-denominator rule is
followed
 When versions differ but with no conflict- thus one complements the other,
they must be read together
 Even unsigned legislation may be used to derive the meaning of the
legislature

Subordinate legislation:
 There is no statutory or Constitutional law that deals with conflicting Subordinate
legislation and as all forms of subordinate legislation is signed when texts conflict
they must be read together. As a signature has no influence on its weight—Du
Plessis v Southern Zululand Rural Licensing Board 1964.
 If there is an irreconcilable conflict, between various sources of subordinate
legislation, the court may apply the one that will benefit the persons concerned.
 This approach is based on the presumption that the legislature does not intend
legislation that is futile—R v Shoolman 1937.
 If the conflict leads to vague or unclear subordinate legislation, the court may
deem it invalid.

Criticism of this approach:

 All legislative texts should be read together
 The conflict is created by a text-based approach to the interpretation, because
the purpose of the legislation is ignored if there is an irreconcilable conflict
between two versions of the legislative text
 It could be that the unsinged version of the text expresses the true aims of the
legislature, thus the ‘blindly’ following of singed texts, could mean the courts
defeat the purpose of the legislation
 S39(2) Constitution- if there is an irreconcilable conflict, the text that best
supports the objects of the BoR must be followed

A) The Preamble
 Contains a program of action or a declaration of intent, to the broader principles
contained in the Act.
 They may be used to interpret the legislation as it provides context
 it can never be used on its own to provide the final meaning of a legislative text
 Jaga v Donges- the preamble was included as part of the context of the statute
 National Director of Public Prosecutions v Seevnarayan 2003, the CC rejected the
idea that the Preamble may be considered only if the text of the legislation was
unclear

B) The long title

 Provides a short description of the subject matter of the legislation
 It is part of the statute which the legislature during the legislative process
 Helps to ascertain the purpose of the legislation, the courts are able to refer to it
as a source to establish the purpose of the legislation

C) The definition Clause

 An explanatory list of terms in which certain words and phrases are used in the
legislation is defined
 A definition it the definition section is concludes, unless the context in which the
word in the legislation indicates another meaning

D) Express purpose clause and interpretation guidelines

 Contains more focused and valuable information relating to what the legislation is
intended at and how it must be interpreted
 Cannot be decisive on its own
E) Headings to chapters and sections
 The introduction to the chapters or sections
 From the text-in-context approach the headings can be indications of the
purpose of the legislation

F) Schedules
 Shorten & simplify the content of the matters in the sections of the legislation
 Their value is dependent on their nature and its relation to the rest of the
legislation
 General rule- schedules that expound s1 of the Act, have the same force as s1 of
that same Act
 If there is conflict between the schedule and the section, the section prevails

6.1.3 external language aids to interpretation

A. Dictionaries and linguistic evidence

 Courts often use dictionaries, in modern times, as they serve to mark out the
scope of the meanings available for a word
 In De Beers Industrial Diamond Division v Ishizuka 1980, the court
held that meaning of a word cannot be determined conclusively by its
dictionary meaning.
 In Fundstrust v Van Deventer 1997, the court held that authoritative
dictionaries are permissible and helpful methods available to the courts during
interpretation of statutes.
 S v Makhubela 1981- the accused was behind the wheel of a vehicle as
others were pushing it on a public road without a driver’s licence. The court
found him guilty, from the definition of the word ‘drive’ as found in the Road
Traffic Act was inadequate and that consulted a dictionary.

B. Footnotes- usually not part of the Act, may be used as external aids of
interpretation
C. Computation of time
 There are time limits set by courts and lawyers to complete certain tasks
relevant to a case, such as deadlines for certain documents
 Many constitutional provisions and statutory enactments are prescribed with
time periods which have influences on their implications and
 S4 of the Interpretations Act deals with time bound functions but there are
also common-law methods of computation of time is affected
Year- 365 dyas, 1st of jan- 31st of December
Month- a calendar month, not a lunar month, or a period of time between tow
corresponding date in succeeding months of the year
Week- for the purpose of time computation by the courts it is any period of 7
successive days
Day- 24 hours

Statutory methods of Computation of Time:

(s4 of the Interpretation Act)
 The first day is normally excluded (the day the matter is dealt with) so the
clock starts the following day
 The last day is included, unless that day is a Sunday or a Public Holiday, but
they are still counted if they are not the last day
 S1 of the Act states s4 will apply unless the contrary interpretation is clear
from the relevant legislation
 The first day exclusion will not apply when
o The rules of court provide that there will be a number of court days
that are referred to in the contract or legislation
o The computation will not include Saturdays, Sundays or public holidays
and the period cannot end on these days
o When there is reference to a number of ‘clear days’ which is a number
of days between two events
 Courts may at any time change the default time calculation methods
Common law methods
 Computatio civilis- ordinary civil method- this is the general method that will
be used unless stated otherwise.
o The first day is included and the last day is excluded
o Used in instances where dealing with months or years
 Computatio naturalis- natural method-
o Calculated from the hours or minutes
o From an occurrence to the corresponding hour or minute on the last
day of the period in question
 Computation extraordinaria- extraordinary civil method-
o Both the first and last day are included
o This method is no longer in use

6.2 The Holistic Dimension:

6.2.1 the total picture

Legislation must be constructed within the total picture of the law
 To be able to interpret legislation, one must look at the context thereof and
additional sources of information that grant you that insight.
 The constitution and other relevant law must be taken into account, through
“Structural wholeness of the enactment” in order it understand its entirety

6.2.2 Balance between text & context

 In Jaga v Donges, the court rejected the view that context of legislation
should only be looked at if the text of the legislation was unclear, thus
bringing in a broader interpretation and examination of legislation
 As Kruger stated legislation cannot be construed properly if text and context
are separated.
 The meaning of words in texts should be weighed up against the context of
the legislation
  Thus, text-in-context supporters have been criticised for ‘free-floating’
methods of interpretation, thus stating they are ignoring the text of the
legislation.
 This is not what the balance aims for, as it strives for the truth and states that
the context of legislation has to be anchored to the text in question

6.2.3 structure of legislation

 Plays a meaningful role during the interpretation process, as punctuation and
grammar can influence the meaning of text.
 R v Njiwa 1957, the court state that punctuation must be considered during
the interpretation
 S v Yolelo 1981, the court held the interpretation of the purpose of the
legislation prevails over the interpretation of divisions of paragraphs
 Skipper International v SA Textile and Allied Workers Union 1989, the court
held that since the legislature placed the punctuation there intentionally it
must be interpreted as their intention

6.2.4 conflicting legislation

A. Legislation has a purpose:
 Unless it is clear otherwise, it must be presumed that the legislature does not
intend for legislation to be futile
 ‘effectual and purposeful legilsation’ the most important principle of
interpretation, as it states the court must determine the purpose of the
legislation and give effect to that purpose
 Acknowledging that legislation has a purpose and object
 Ex Parte the Minster of Justice: in re Rv Jacobson the court held that the
intention of the legislature is clear and that it should not be defeated because
of vague language.
 R v Forlee 1917- Forlee was found guilty of contravening Act 4 of 1909 for
selling opium. In his appeal the court stated that despite there being no
punishment for this offence, the legislatures intent was clear and thus still an
offence
 B. Conflicts with other legislation
 In order to avoid unconstitutional legislation courts can employ a number of
corrective techniques in attempts to keep the legislation in question alive
 If these methods result in failure, deeming the legislation void as a result of
unconstitutionality is their only option
 If two pieces of legislation are in conflict, both must be read together to solve
the problem
 If the problem cannot be resolved by reading both, the earlier enactment will
be replead by implication of the latter
 Legislative short cut- if they cannot be repealed or reconciled, it results in
modificative interpretation, if there is no other option available to the court

6.2.5 the presumption that governmental bodies are not bound by their
own legislation
 As a general rule it is presumed that governmental bodies are not bound by their
own legislation unless the legislation expressly states otherwise—s24 of the
Interpretation Act.
 This does not mean the state is above the law, instead it is rather a principle of
effectiveness, to ensure that the state is not hampered in its functions
 This presumption was confirmed in Cape v Raats Rontgen & Vermeulen 1992
 In Evans v Schoeman 1949, the court said that the following indications to show
when the state will not be bound:
i. If the state would be rendered subject to the authority of its own officials
ii. If this would mean the state would be interfering with its own officials
iii. If the state would be affected by penal provisions
 Depending on the legislation and the circumstances of the case, will determine if
the case was bound or not, thus each case must be judged on its own merits.
 Examples of this presumption being applied:
i. Government bodies and state-controlled agencies are bound by town
planning schemes
ii. When a security officer acts outside the scope of his duties, meaning they
cannot rely on the presumption for defence
 iii. The driver of a fire-fighting engine may disregard the red traffic light while
fire-fighting
iv. Agricultural officers who combat stock diseases and from time to time has
to cull animals is not bound by statutory requirements of a hunting permit.
 S v De Bruin—the accused was charged and convicted with exceeding the
statutory speed limit. However, on appeal the accused won the case, due to the
fact that he stated he was speeding that day, in order to be on time for an
inspection on the states behalf. Meaning if he was late the state could have faced
detrimental damage to their case. The court deemed this act reasonable.
 Criticism
i. From s39(20) of the constitution it states that the common-law must be
developed to be in line with the fundamental rights and that this
presumption is in violation thereof.
ii. S8(1) states all governmental bodies are bound to the BoR, thus how can
the state be above the law in a Democratic country

6.3 the Value-Laden (Teleologial) Dimension:

6.3.1 the new constitutional approach to statutory interpretation

 In Sidumo v Rustenburg Platinum Mines 2008, the CC decided the constitutional
values to be:
o Values are strong, explicit and clearly indicated to be considered part of
the very texture of the constitutional project, they are implicit in every
structure and design of the new democratic order. The letter and spirit of
the constitution cannot be separated, just as the values are not free-
floating, ready to alight as more adornments on this or that provision, so it
not self-supporting, awaiting occasional evocative enhancement.
 Despite this, the value-based dimension of statutory interpretation is not easy to
implement.
 Since the constitution the legal body of South Africa has had to deal with the
concept of values, with all its members having beein schooled in and
 indoctrinated by positivist ideas of law- iudicis est ius decree sed non dare –
parliament best and has spoken
 The constitution provides us with the BoR, which is the values basis of a more
mature society, trying to be the better society than the previous one.
 The value-based dimension of interpretation is more than paying lip-service,
instead it makes our values real
 Animating them through making, interpreting and applying the law, as well as
ensuring that the law is respected and followed.
 S v F 1999, the court had to decide whether a 17-year-old, rape victim could
testify from a room adjoining the court. Requiring the interpterion of s158(3) of
the Criminal Procedure Act. The court held that s158(8) cannot be read separate
from paraph’s (a)-(e). this decision mistakenly forced lower courts to follow these
same strict applications of s158, thus made it basically impossible for victims to
testify without their attacker in the room. There were no references to the BoR
made in this judgment, thus a text-based analysis was taken, alongside to a
grammatical reading of the provision.

6.3.2 Ubuntu
 An indigenous African concept, referring to a practical humanist disposition
towards the world, regarding fairness, compassion and tolerance.
 It was applied in S v Makwyanyane- translated to ‘humaneness’ or ‘personhood’
and morality, based on the key values of the group, such as human dignity,
collective unity.
 Despite not being mentioned expressly in the Constitution, it will still remain a
part of our law, as it is now part of the constitutional jurisprudence.
6.4.1 Preamble to the Constitution
 It should not be dismissed as its connects up, reinforces and underlies all the
texts that follows it.
 Preamble
 We the people of SA
 Recognise the injustices of our past
 Hour those who have suffered for justice and freedom in our land
 ….
 United in our diversity
 Build a united and Democratic SA

6.4.2 Prior legislation

 Morake v Dubedube 1928- the court helped that if legation had partially
repleaded, the remaining legislation had to be interpreted in the context, which
included the repealed provisions.
 It can no longer be applied but it must still be looked at as context of other
legislation.

6.4.3 Preceding Discussions

a) debates during the legislative process

 debate proceedings regarding the Bill are of importance as they give an idea
of what the legislature intended with the legislation according to Steyn
b) commission reports
 Hopkinson v Bloemfontien District Creamery 1966, held that the prevailing law
prevented the use of a commission report about the Companies Act.
 In Rand Bank v De Jagre- the court held that commission reports were
admissible aids in constructing the Act, which later become the Prescription
Act.
6.4.4 the Mischief Rule
 Looking at the historical context of the legislation to place the provision in
question in its proper perspective, is the mischief rule.
 It poses 4 questions to establish the meaning of legislation:
1. What was the existing law, before the legislation was adopted?
2. Which problem was not correctly addressed by the existing law before the
new legislation?
3. What remedy does the new legislation provide to solve this problem?
4. What is the true reason for the proposed remedy?

6.4.5 contemporanea expositio

A short explanation of legislation, given by those who are involved in the adoption of
the legislation.
An explanatory memorandum from its drafters are often published, accompanying
the Bill.

6.4.6 subersecuta observatio

A category of external aids to interpretation, that refers to established administrative
usage over a period of time. The way legislation has been applied in practise, by the
agencies and department entrusted with its administration.

6.5 the Comparative Dimension

6.5.1 foreign law

 The SA courts use to take foreign law into account, when our legislation had
English Statutes incorporated into our law, word-for-word.
 Thus, our courts may use English law as a guideline if the SA legislation is
identical to the original English legislation and if the English legislation is not
in conflict with SA common law.
 However, it must be applied with circumspection
6.5.2 International law
 S233 of the constitution is another interpretation clause, dealing with the
relationship between the constitution and public international law.
 “when interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law over any
alternative interoperation that is inconsistent with international law.
 S233 is a peremptory provision and is the constitution conformation of the
common-law presumption that legislation does not violate international law. A
court must prefer a reasonable interpterion that is not in conflict with
international law.
 S233 is qualified by the provisions which also deal with international law: in
terms of s231 an international agreement becomes law in the Republic when it is
enacted into law by national legislation and s 232, provides that customary
international law is law in the Republic unless it is inconsistent with the
Constitution or an Act of Parliament.