Presumptions of Interpretation

 Presumptions of the interpretation aim to give protection to civil

liberties. It is envisaged that certain values will be followed by the
legislature. They assist the courts in construing legislation. Du
Plessis says Construction of an Act should begin with the
presumptions and end with the presumptions.
 Hahlo and Kahn – on the SA Legal System and its
Background classify presumptions as a tertiary source. This view
has been criticised. Cross, remarks that, they apply although
there is no question of linquistic ambiguity and may be defined as
propositions of general application.
 Driedger says:
These are firmly incorporated in our jurisprudence and should apply and
always be kept in mind in construing statutes and not only to those that are
found to be defective. Every statute involves language, a legislative scheme
and a declared and presumed intent of parliament.
Cowen expresses similar perception when he stated;
To begin with many of the relevant presumptions are legal principles,
comprising, basic or fundamental parts of the legal system. Statutes are not
isolated phenomena but should be integrated or harmonised with the whole
legal system of which they form a part. It follows therefore that such
presumptions should be taken into account by the interpreter right from the
onset, no matter how wide and general and no matter how seemingly clear
the words of a statute may seem when considered in isolation. Furthermore,
when all the relevant contextual considerations have been duly weighted,
the interpreter should again test his conclusion in the light of the
presumptions
Du Plessis says presumptions are ABC and the XYZ of statutory
interpretation
 Parliament is expected to respect presumptions because they are
recognized principles – Pearce says: Presumptions have evolved
and continue to evolve and serve as basic guidelines.
1 THE LEGISLATURE DOESNOT INTEND TO ALTER THE COMMON
LAW MORETHAN IS NECESSARY
 It is regarded as the most fundamental of all presumptions of
interpretations of statutes. Interpretation is therefore to be in
contextual harmony with the letter and the spirit of the whole
body of law, meaning (Statutes and Common Law).
 Paton observes that:
Statutes are a gloss written around the Common Law and hence we can
regard the Common Law as primary except in so far as it is specifically
altered by legislation. On the continent, the influence of the work of
Justinian led lawyers to regard enactments as the primary type and today of
course the real foundation of the law of Western Europe is found in the
codes. In interpreting a statute the provisions are to be in harmony with the
Common Law.
 In Van Heeden and others NNO v Queens Hotel Pvt Ltd and
others 1973 (2) SA 14(RA) Beadle CJ stated ;
I cannot see how statutory rights can be regarded as more sacrosanct than
the Common Law rights as the rights of man are founded on the Common
Law and as the Common Law is less subjected to change than statutory law,
which may vary from year to year according to the whim of a particular
legislature. Common law rights must be more jealously guarded than
statutory ones. Only direct or express words are to alter the common law
but full effect may have to be given if it is categorically clear. It has to be
clear and unequivocal.
2 THE LEGISLATURE DOES NOT INTEND THAT WHICH IS HARSH,
UNJUST OR UNREASONABLE.
 Milton suggests that the basis of this presumption is that ‘ every legal
system strives to achieve standards of reasonableness, justice and
fairness and the law making organ of the system must thus be
presumed to enact with this aim before it.’
JOOSUH V IMMIGRANTS APPEAL BOARD 1920 CPD 109 AT 111
Sir John Kotze expressed it this way .
 The law favours liberty and the upholding of rights and the court must
act in that spirit , except where in the particular instance it is clear
that the legislature has otherwise intended ‘’ The presumption is also
rebuttable. If the words are clear and unequivocal the courts are
enjoined to interpret them as they are.
 It covers instances of justice and reasonableness

3 THE LEAST POSSIBLE BURDEN TO BE IMPOSED UPON PERSONS

AFFECTED BY A STATUTORY PROVISION.
This presumption expresses the equitable nature of the common law.
 Johannes Voet, eloquently states that law ought to be just and
equitable for it prescribes what is honourable and forbids what is base
and in its form it preserves equality and binds citizens equally.
Statutes to be strictly construed and an interpretation that is least
unreasonable or inequitable should apply.
These can be classified as follows;
4 DEPRIATIVE PROVISIONS THAT IS PROVISIONS WHICH REMOVE
OR ENCROUCH UPON RIGHTS OF THE INDIVIDUAL
 The courts provide individuals with remedies for the State’s abuse of
power. Statutes which encroach on to the rights of individuals be it
personal or property are subjected to strict interpretation.
Courts have not always been assertive.
PRINCIPAL IMMIGRATION OFFICER V BHULA 1931 AD 323.
 The court held that where the statute is clear, courts are to give
effect to it irrespective of the result . There is according to Devenish
a continuous tension in justice and illegal systems.
Lord Denning put it this way
 The law as I see it has two great objects, to preserve order and to do
justice and the two do not always coincide.
 Those whose training is towards order, put certainty before justice,
whereas those whose training is towards the redress of grievances,
put justice before certainty.
The presumption is also rebuttable.

5 COMPENSATION FOR VIOLATION OF PARTRIMONIAL RIGHTS

 THE position has been that where a statute takes away patrimonial
rights, compensation is to be provided. Expropriation is to be
accompanied by compensation. The power of the state to expropriate
dates back to the middle ages.
 It was limited to instances where it was justified by public necessity.
 A strong presumption exists that there can be no taking away of
property without compensation The Expropriation Act incorporates
the principle. Protection of private [property] rights is cardinal to our
jurisprudence.
6 PROVISIONS WHICH IMPOSE PECURIARY BURDENS
 Imposition of taxes is a source of intense resentment. The principle
emerging from it is that there should be no taxation without clear
parliamentary approval.
The courts have not always favoured the tax payer.
 Toll gate cases
 NSSA
 The contra fiscum rule applies not only to tax legislation but other
legislation.
7 PENAL STATUTES
 The presumption emphasises justice for individuals in a penal statute.
If a statute is capable of giving,(leading) to more than one meaning,
the courts are enjoined to adopt the meaning that favours the liberty
of the individual and least interferes with the liberty of the individual.
R v S ACHS 1953 [1] SA 392
Penal provisions are to be strictly construed.

7 IN CASES OF DOUBT THE MOST BENEFICIAL

INTREPRETATION SHOULD BE ADOPTED
 If doubt exist on the correct interpretation of a statute and one
meaning leads to harshness and injustice and the other does not the
court will hold that the legislature intended the milder meaning than
the harsher meaning.
GODDARD REGISTRAR OF DEEDS , KING WILLISME TOWN AND
COLONIAL GOVERNMENT [ 1908] 25 SC 207
The rule is justified where there is absurdity, vagueness or uncertainty.

8 THE RIGHT TO LEGAL REPRESANTATION IS NOT EXCLUDED

 In all inquiries that are likely to adversely affect individuals whether,
detained or not the right to legal representation is presumed. It is
more so where deprivation of liberty or property is likely to ensue.
This is confirmed by the Constitution S 69 under the right to a fair hearing
9 THE LEGISLATURE INTENDS TO TREAT ALL PERSONS AFFECTED
BY ITS LAWS ON THE BASIS OF EQUALITY
 The reasoning behind this presumption emanates from the common
law which aims to treat all persons on the basis of equality.
All legislation is expected to produce that result.
 Equality before the law is a seminal postulate of justice.
 Legislation is to endeavour to uphold this important concept.
 Didcott J had this to say
Its harshness is foreign to the idea cherished by lawyers everywhere that
the law’s business is first and foremost to protect the liberties of the
individual and the safety of [individual] public rests largely on law’s success
in doing so.
 No counterpart, nothing at all similar can be found in any system of
jurisprudence with which we would like ours to be compared.
In RE- Duma 1983 [4] SA 469
 Courts can apply the presumption to discriminatory or
unconscionable [Link] legislation is irrational.
The principle of equality before the law is enshrined in the
Constitution S 56, equality and non-discrimination S31 provision
of Legal aid .
10 THE LEGISLATURE DOES NOT INTEND ABSURD OR
ANOMALOUS RESULTS
 It is concerned with the reasonable and logical thought process of
the legislature.
 In Venter v R – it was held that it was permissible to depart from
the ordinary meaning of words where the meaning would lead to
an absurdity, so glaring that it would never have been
contemplated by the legislature.
 Absurdity and repugnance is to be avoided.
 The criticism is that the test for absurdity is elusive.
 The absurdity has to be glaring.
11 PRESUMPTION IN FAVOUR OF THE PRINCIPLES OF NATURAL
JUSTICE
[Hear both sides] basic fundamental
 If a law authorises judicial or quasi judiciary authority there is a
presumption that such powers are to be used in accordance with
the principles of natural justice
THE AUDI ALTERAM PARTEM PRINCIPLE
 This is the most significant of these principles. A party to a
hearing has to be given an opportunity to tell his side of the story.
Both sides have a right to be heard. No one should be condemned
and unheard. No none should be incarcerated unheard. Decision
makers are under an obligation to act fairly.
Decision makers are to be impartial. (Impartiality means– not to be a
judge in one’s own case.
THE PRESUMPTION OF MENSREA AS A REQUIREMENT FOR
CRIMINAL LIABILITY.
 There is the presumption that mensrea is required for a person to be
found guilty of a crime. If an act is not accompanied by a guilty mind
then no crime is committed. It gives expression to the common law
principle of natural justice and equity. Strict interpretation is
necessary if the language of a statute is obscure or ambiguous.
NB negligence may constitute an element of an offence.
 There is a cogent contemporary judicial sentiment against finding
anyone guilty of a criminal offence.
 In the absence of men rea . The rule is fundamental. Innocent
violations are not punishable.
 Equality may be sufficient.
 The object and scope and political and socio-economic circumstances’
– are to be taken into account
 Statutory offences may be classified into 3
 Those that require – mensrea
 Those that require negligence
 Strict liability offences
 Courts will be required to consider, the severity of penalties and how
difficult it is to detect the offence and whether the object of the
statute requires strict liability and whether the object of the statute
would be defeated.
12 THE PRESUMPTION AGAINST RETROSPECTIVITY
 Observance of the presumption against retrospectivity of the law is
very important. If the state disregards, it reduces the law to an
instrument of governmental anarchy.
 The reason for this presumption is to ensure that justice is done to all
people.
 Du Plessis observed that
The operation of statutes is in the nature of things delimited by time and
space , and it would as a rule make little sense either to prohibit or to
permit what has been done in the past,
 The courts have not construed the presumption mechanically but
perceptively, thereby ensuring that the law is justly and reasonably
applied.
 The presumption has a universal application.
  A law is presumed not to operate retrospectively.
TWO COGNATE PRESUMPTIONS
 Two presumptions are involved. One is against retrospectivity and the
other one of not taking away vested rights.
Briedger says
 A retroactive statute is one that operates backwards, that is to say it
is operative as of time prior to its enactment. It makes the law
different from what it was during a period prior to its operation.
 On the other hand a retrospective statute changes the law only for the
future but it looks to the past and attaches new prejudicial
consequences to a completed transaction.
 A retrospective Act operates as of the past time in a sense that it
opens up a closed transaction and changes its consequences, although
the change is effective only for the future.
Presumption can be rebutted by express words to the contrary

13 THE RETROSPECTIVE PENAL STATUTE

 If an amending Act which increases the penalty is presumed not to
increase the penalty provision for any misconduct done prior to the
Act.
 A penalty provision which reduces the penalty is to be applied.
 The retrospective provision which is beneficial is to be applied

14 THE PRESUMPTION THAT THE STATUTE SHOULD NOT BE SO

CONSTRUED AS TO QUESTION OR RESTRICT THE JURISDICTION
OF THE COURTS.
 A strong presumption that the Act is not to oust the jurisdiction of the
courts arises. Courts are empowered to determine disputes between
individuals and disputes between the state and individuals. This is
referred to as bastion of civil liberties. Courts are jealousy of their
jurisdiction. They consider themselves as the Guardians of the rights
of citizens against state oppression.
 Parliament has the jurisdiction to oust the jurisdiction of the courts if
it does so in a clear and unequivocal way. Ouster clauses are subject
to judicial restrictive interpretation.
15 ,PRESUMPTIONS THAT FAVOURS THE STATE
 Some presumptions favours the state e.g Presumptions of
legislative intent favour the state ‘’ Rule of law ‘’, principle of
legality favours individuals. These seek to give legal value that
constitutes and enforce of [Link] LAW
Presumptions of legislative intent often reflect basic legal values embedded
in such a concept as the rule of law or the principal of legality.
 The presumption against the ousting of the court’s jurisdiction ,
against retrospectively and against the unreasonableness,
injustice, absurdity or impartiality illustrate the extent to which
accepted methods of statutory interpretation seek to give effect to
 those legal values that constitute the pillars of the edifice of R.D
Law .
 A judge is obviously at liberty to overlook these presumption in
favour of Ors less intimately associated with the ‘’ Rule of Law ‘’
or the principle of legality ‘’ or to invoke other rules of
interpretation in the course of his search for the intention of the
legislature as there is no hierarchy of rules of statutory
interpretation or presumptions .
 On the other hand the when a judge does invoke such
presumptions he does so in the secure knowledge that he is
employing those rules of statutory interpretation that give best
effect to the basic principles of R.D law. In this sense they may be
considered as ‘’ preferred presumptions in the same way as
certain of the more basic rights contained in the American Bill of
Rights are regarded as ‘’ preferred freedom ‘’
Presumptions are pointers to certain conclusions.
18 THE LEGISLATURE DOES NOT INTEND TO MAKE ANY
PROVISION WHICH IS FUTILE , NUGATORY , UNNECESSARY OR
MEANINGLESS
 Originated from the Roman Law and applied in R.D Law –A statute
is not to be interpreted to make it in-operative . It should be given
effect. This has to be done by considering the objects.
 A statute is construed to make it effective intelligible and valid
rather than defeat its purpose business efficacy has to be given
effect.
 Unclear words are to be given a meaning that promotes the
object or purpose of the statute .
 R V FORLEE 1917 TPD 52, Accused, was convicted of selling
opium and fined. His appeal on the grounds that the statute
provided no penalty failed. The judgement deals with the
presumption of effectiveness and the presumption is fundamental.
It also requires judicious weighing up.
 A statute should not be construed, so as to facilitate a fraud.
 Words in a statute are not tautologious or meaningless.

19 THE PRESUMPTION OF CONSTITUTIONALITY

Legislation that is examined by the parliamentary legal committee is
presumed to be constitutional; GEORGE CJ, IN MIN. OF HOME
AFFAIRS v BICKLE AND Ors 1984 [2] SA 439 on the
constitutionality of emergency powers (FORE FERFEITURE OF
ENEMY PROPERTY ) Regs held that it is not to be placed on the
interpretation. S 3 purported to confer on the state by reason of the fact
that he is or has been an agent of or on behalf of, or prejudicial to the
public safety of Zimbabwe or which is subversive to , Zimbabwe [was
 unconstitutional because it was in conflict with S.16 of the Constitution
– which protected citizens from arbitrary compulsory acquisition of
property.
20 THE PRESUMPTION AGAINST CASSUS OMISSUS
 Court endeavour to interpret statutes in such a way that, if two
meanings arise from an interpretation, then the meaning not leading
to a cassus omisus should be adopted.
21 THE PRESUMPTION THAT A STATUTE WILL NOT BE
INTERPRETATED SO AS TO VIOLATE A RULE OF INTERNATIONAL
LAW OR INTERNATIONAL OBLIGATIONS
 In interpreting statutes, the courts endeavour to interpret them in
accordance with international law. Parliament is presumed not to
legislate contrary to international laws to which it is a party. Courts
take judicial notice of the provisions of international law.
International law is applied in its fully developed and fully
contemporary form.

22 THE PRESUMPTION THAT THE SAME MEANING IS IMPLIED BY

THE USE OF THE SAME WORD OR EXPRESSION IN EVERY PART OF
A STATUTE.
 For language to be intelligible consistency in the use of words is
paramount. The same sense is to be expected in the use of the word in
all situations.
23 THE PRESUMPTION THAT AN ENACTMENT APPLIES TO
GENERAL AND NOT PARTICULAR.
 As a general rule legislation is put in place to apply generally to the
communities and not to a single incident. If it clearly says so the
courts are obliged to give effect to it.