Somila Msutu

U19039485

Statutory Interpretation in the post-1994 South Africa

Introduction

This essay will discuss the difference in methodology and approach regarding the
interpretation of legislation between two eras in South Africa, namely pre-1994 and
post-1994. Unlike statutory interpretation before 1994, which was characterized by a
narrow approach that emphasized the literal meaning of the text as the primary rule of
interpretation under a system where the parliament was the supreme legal authority.

The introduction of constitutionalism post-1994 provided a purpose-orientated approach

to statutory interpretation that went beyond just reiterating the literal meaning of the text
when interpreting legislation, but sought out the purpose, and thus the true intention
behind the legislative text. The introduction of constitutionalism also meant that even
with the shift to a new approach in the interpretation of legislation, this approach is still
ineluctably subject and liable to the supreme law of the land, the Constitution, as
specified in section 39(2) of the document1. Additionally, this reading will discuss this
specific provision in more detail, how it relates to the new purpose-oriented
methodology to statutory interpretation, and how it was utilized in the Bato Star FIshing
case2. Lastly, discuss how the interpretation clause, as entailed in section 39(2) is
described according to Langa DP and Ncgobo J opinions, and thus how it pertains to be
one of the key constitutional foundations in our Constitution.

1 The Constitution of the Republic of South Africa, 1996

2 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC)

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Section 39 (2) of the Constitution, the new imperative approach and Bato Star Case

As alluded to earlier, the methodology of statutory interpretation in South Africa

pre-1994, was primarily a literal text-based approach where the plain meaning of the
legal text, if unambiguous, was applied and depended on as the principal intention of
the legislature3. During this period, legal positivism was promoted under a system of
parliamentary supremacy. However, the prime focus of this reading is examining the
approach to statutory interpretation of South Africa post-1994 due to the introduction of
constitutionalism. The introduction of the Interim Constitution of 1993 not only provided
a change to the constitutional and political landscape of South Africa, but also
conceptualized a shift in ideology on how members of the legal fraternity in South Africa
must interpret legislation. One of the main principles included in the Interim Constitution
was the issue regarding the interpretation of statutes which stated that legislation be
interpreted in a manner that the spirit and purport of fundamental rights are taken into
account4. Fundamentally, this would have an influence on the court’s approach to
statute interpretation to the point that they could no longer disregard value judgements
and solely rely on the plain meaning of the legal text when determining the legislative
intent. Therefore the rules of statutory interpretation were influenced by the introduction
of a constitutional order. This principle was retained in the final Constitution of 1996 and
converted into a provision, namely section 39 or the interpretation clause.

More specifically, section 39(2) of the Constitution, entails that the spirit, purport, and
objects of the Bill of Rights must be promoted when interpreting legislation5. This means
that the courts must review the aim and purpose of legislation in the light of the Bill of
Rights, and thus encourages the interpreter to take more of a purpose-oriented
approach to statutory interpretation. This validates the notion that the introduction of
constitutionalism initiated the change in methodology to statute interpretation in South
Africa to a new approach that starts with the Constitution and not with the legislative

3 Principal Immigration Officer v Hawabu 1936 AD 26

4 The Constitution of the Republic of South Africa 200 of 1993
5 The Constitution (n1) s.39(2)

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text6. The preceding subsection, section 39(1) provides a guideline to what must be
considered regarding the interpretation of legislation in accordance with the Bill of
Rights. As it states when interpreting the Bill of Rights, courts must promote the values
that underlie an open and democratic society based on human dignity, equality, and
freedom7. The interpretation clause requires the interpreter to have an objective view of
the intention of the legal text and have full consideration for value judgements.

The importance of the new methodology to statutory interpretation is attributed to the

introduction of constitutionalism, and in the same breath, this new approach is
imperative to the concept of constitutionalism in South Africa. In contrast to the literal
approach to statutory interpretation that is derived from legal positivism which discards
morals and values, and where the command of the state is the authority that makes the
law. The new approach paves the way for constitutional supremacy and for more
in-depth analysis of legal texts to achieve the advancement of constitutional values in
creating an open and democratic society.

In Bato Star Fishing, where a medium-sized black fishing company’s appeal for a higher
allocation in fishing quotas was refuted by the Supreme Court of Appeal8. Bato Star
relied on section 2(j) of the Marine Living Resources Act which is aimed at a
transformation of the fishing industry to address inequalities within the industry
stemming from the apartheid regime9. The matter was subsequently taken up by the
Constitutional Court. The court granted the application for leave in favour of Bato Star10.
Ngcobo J in a separate judgement held, to paraphrase in his words, that legislation, in
this case, the Marine Living Resources Act and its provision must be understood
through the lens of our Constitution. The achievement of equality is a fundamental goal
that the Constitution sets out. Therefore, if the Act pertains to addressing this concern
within the fishing industry through the means of transformation, then it must be
interpreted and carried out that way, but within the framework of the Constitution.

6 Holmgren v Argus Newspaper Ltd 1996 (2) SA 588 (W) 618

7 The Constitution (n1) s.39(1)
8 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC)
9 Marine Living Resources Act of 1998
10 Bato Star Fishing (n8)

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The constitutional foundation according to Langa DP and Ncgobo J

Ngcobo J provides a perfect illustration of the new approach to statutory interpretation in

post-1994 South Africa by interpreting the statute in accordance with the foundational
value of equality, which is enshrined in our Bill of Rights. As Ngcobo bases this new
methodology of interpretation on the constitutional value, namely the achievement of
equality. In accordance with the Hyundai case, Langa DP outlines the fundamental goal
of the Constitution, to transition the society of the past that was based on separation,
injustice, and ostracism to one that is based on democratic values, social justice, and
human dignity11. This transition is predicated on the introduction of this new
interpretative method post-1994, as it is through a purpose-oriented approach in which
the Constitution can be interpreted to achieve its fundamental goals.

Conclusion
In conclusion, the post-1994 methodology of statutory interpretation is purpose-laden
and subject to promoting the spirit, purport, and objects of the Bill of Rights as specified
in the interpretation clause. This new approach was attributed to the introduction of the
Constitution and therefore is subject to the framework of it as the supreme law of the
land. Consequently, changing the interpretation of statutes from being a robotic
reiteration of the Parliament’s authority, but to one that is inspired by the values of the
Constitution. This approach is also imperative in uncovering the constitutional
foundations and values that our Constitution rests on. This was evident in Bato Star
where the statute was interpreted to achieve overall equality in the fishing industry.
According to Langa DP, this new interpretation method is also a constitutional
foundation for transforming South Africa into a society based on democratic values,
social justice, and a priority for human rights.

11 Hyundai Motor Distributors (Pty) Ltd v Smit 2001 (1) SA 545 (CC)

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1194 words

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 BIBLIOGRAPHY

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
(CCT 27/03) [2004] ZACC 15;2004 (4) SA 490 (CC)

Botha, C Statutory Interpretation An Introduction for Students (JUTA 2012)

Marine Living Resources Act of 1998

The Constitution of the Republic of South Africa, 1996

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