Study Unit 6: Other Canons of Statutory Interpretation

Study material:
 Class slides and notes.
 Du Plessis 2C32- 2C60
 Van Staden "In defence of custom in statutory

interpretation" 2020 TSAR 355

 . Globalization in Search of Justification_ Toward a Theory

of Comp.pdf

At the end of this study unit you should be able to answer:

a) What is the origin of Canons or Methods of Statutory

Interpretation?

b) What is the function of Canons of Statutory Interpretation?

c) List the 5 methods of Statutory Interpretation.

Historical interpretation:
 Questions: Critically discuss Historical interpretation.
Q: What does Historical interpretation entail?
A: According to Von Savigny Historical Interpretation entails entry into
and identification with the historical situation from which a law emerged.
 The sprit of this history is more significant than the historical facts-
From this “spirit of history” much can be learnt about ratio legis.
 Teleological interpretation by lacking a historical foundation is
empty.
 The mischief rule for instance as a manifestation of Teleological
interpretation, shows an alertness to the historicity of legislated
text.
 Mischief rule
 The Constitution has also been described as the remedy to a
fundamental mischief in South Africa’s history.
 In SA historical interpretation has been generally thought of
as genetic interpretation- which is a method of interpretation
that focuses on the genesis of the history of the wording of
the text.
 However, custom references to the predecessors and
successors of a provision as well as surrounding
circumstances that relate to the adoption if the provision
have all been held to be allowable.
 The historical source from which a provision comes from is
also consulted.
Custom
How can custom play a role in statutory and constitutional interpretation
and what kinds of custom will mostly be considered for this rule?
 Not clear- It is not clear to what extent reliance on custom in
statutory and constitutional interpretation has been affected by
constitutionalism.
 Traditionally- Traditionally courts have attached interpretative
weights to those customs that have come into being as a result of
the conduct of authorized functionaries of the state.
 Court decisions- Court decisions dealing with interpretative value
and customs which have evolved on a vertical level.
Van Staden in defense of custom in statutory interpretation
Relies on the Marshall NO case where the CC found that the
Boston case illustrated that the use of custom during interpretation
was not in conflict with “contra fiscum rule”.
That the some weight must be accorded to custom in the
interpretation of ambiguous legislation.
Argues that although the use of custom as an interpretative aid
functioned in the Literalist approach, it can still be a key in
assisting the interpreter determine the meaning.
That the Teleological approach requires that statutes must be
understood in light of their purpose and values.
- That the use of custom that the use of custom can still serve an
important function within our constitutional democracy.
Reference to other statutes
 Provisions in the 1996 Constitution which are similar to the
transitional Constitution have been attributed meanings
corresponding to those they have acquired in jurisprudence on the
latter of have been construed with reference to the earlier meaning
attributed to them.
 S v Twala
“ A change in expression between the interim Constitution and the
Constitution could conceivably indicate that the drafters intended a
change in meaning. However, it should be not necessarily be
understood to convey a change in meaning if the language into its
context does not require this”

Can the Constitution be understood in light of statute law?

 According to the rule of thumb, legislation is to be read in light
of the Constitution and not vice versa.
 However, the growing body of subsidiary constitutional statute
law that augments and gives fuller and more detailed effect to
constitutional provisions and jurisprudence on its interpretation
will somehow probably impact on constitutional interpreter of
some open-minded provisions of the Constitution.
 Not the meaning attributed to words and phrases in legislation
dating from the era prior to the advent of the constitutional
democracy.
Surrounding circumstances:
 It is permissible to consider relevant surrounding circumstances
that existed at the time a statute was passed in order to explore
the meaning of possibilities of the text.
 These circumstances must be such that a court can take judicial
cognizance of them.
 This emphasizes the close connection of the mischief rule with
historical interpretation.
The Genesis of the text:In S v Makwanyane it stated that back ground
evidence may be useful to show why particular provisions were or were
not included in the Constitution.
Comparative interpretation
How can international law and foreign law be used to interpret legislation
and the Constitution?
 Preliminary observations
 International Law
 Foreign law
 Reasons for comparative methodology by Van Staden

Preliminary observations
 Von Savigny did not include Comparative interpretation in his
quartet.
 This is a Canon that followed after.
 Comparative interpretation entails two modes of transnational
contextualization
1) The interpretation of municipal statute law and the Constitution in
light of international law.
2) The interpretation of domestic statute law in light of foreign law.
 Both of these modes occasionally been conflated.
International law
 Is based on Section 233 which requires that international law
should be domesticated and made binding law.
 Section 39(1)(b) states that consideration must be made of the
International law when interpreting the Bill of Rights.
Foreign Law
 Is usually consulted where conventional wisdom has not been
established.
 Section 39(1)(c) states that foreign law may be considered during
interpretation.
 S v Makwanyane: It was stated that we required to construe the
South African Constitution not the Constitution of another country
and this has be done with consideration of legal system, history
and circumstances of our Constitution. We derive our assistance
from foreign law but we not bound by it.
According to Van Staden what are reasons for Comparative
interpretation?
  Persuasiveness
 Globalized
 Problem orientated
 Caution
 Cultural construct
 Important
Grammatical interpretation
 Ordinary meaning rule
 Time and technicality
 Definitions in Statutes
 Definitions in the Interpretation Act.
 Language is not used unnessarily
 Statutory multilingualism
 Punctuation, paragraph, and section divisions.

 Grammatical interpretation cautions the interpreter to take the

meaning generative function of language and of the text as
linguistic signifier seriously.
 The rules of Grammatical interpretation are therefore designed to
limit the possible meanings the language of a legislative instrument
can generate.
