INTRODUCTION

Interpretation of Statutes/Interpretation Theory

Introduction and general principles
MISS DEOKIRAM
 LECTURER INFO:
Name: Ms. Nicole Deokiram
Email address: ndeokiram@uj.ac.za
Contact number: 011 559 4752
Consulting hours: TBC

PRESCRIBED READING:
• Fuller “The Case of the Speluncean Explorers” 62 HARV. L.
REV. 616 1949.
• Van Staden “A comparative analysis of common-law
presumptions of statutory interpretation” 2015 Stell LR
550. (only read par 1, 2, 3, 3.7 and 3.9).

INTRODUCTION 2
What is statutory interpretation?

1 Du Plessis: 2 Popkin:
“The subject Interpretation of Statutes is concerned with the “the process by which judges determine statutory meaning”
principles, rules, methods and techniques which jurists
employ in order to understand statutes, ie legal precepts
deriving from legislative activity, and to apply their provisions
Natal Joint Municipal Pension Fund v
to concrete, practical situations.”
4 Endumeni Municipality 2012 4 SA 593
(SCA):

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“Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other statutory
Barak: instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
“a rational activity that gives meaning to legal texts”. document as a whole and the circumstances attendant upon its
coming into existence.”

INTRODUCTION 3
 Why is statutory interpretation NB?

1. Legislation is not clear cut.

Legislature legislates in both vague and precise language – both instances may require interpretation.
Courts to interpret legislation.
Separation of powers – ?
2. The judiciary contributes to the transformation of South Africa through its power of interpretation.
3. Gives effect to legal certainty and the rule of law.
4. Meaning-generation is a function of statutory interpretation and every application of a text to particular
circumstances entails interpretation.

INTRODUCTION 4
Example: Section 11 of the Bill of Rights

Makwanyane case Soobramoney case Carmichele case

Text Walters case (CC)
(CC) (CC) (CC)

CC linked the rights

“Everyone has the Held that the right to Held that the existing The constitutional to life and freedom
right to life” life means that the right to kill a person right to life does not and security of the
state may not take a in self-defence was mean that the state person to the
person’s life in not abolished by the has a duty to keep constitutional
retribution, and the Constitution. all terminal patients duty imposed on the
death penalty was alive in all state and all of its
declared circumstances. organs
unconstitutional. not to perform any
act that infringes on
these rights.

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Lon Fuller’s - The Case of the Speluncean Explorers

Facts:
• Fictional!
• Fuller illustrates DIFFICULTY in interpretation
• 5 Speluncean Explorers were trapped in a cave for 32 days; they survived only by
killing and eating the flesh of one of their party.
• There was one sentence statute – Newgarth’s murder statute:
“Whoever shall willfully take the life of another shall be punished by death”:
- No exceptions to the statute e.g. self-defence.
- There was no interpretation of the statute, therefore no guidance.

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LQ: There were 5 justices and they had to decide whether the 4 surviving
Speluncean Explorers were guilty of murder?

• All five judged considered:

• The facts and circumstances of the four defendants.
• The effect of the decision on society and the rule of law.
• Whether the Chief Executive or the President of New garth would pardon the
defendants if they were convicted.
• The justices also considered they own moral impulses.
• Note – all 5 justices were white – American – males.

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• Chief Justice Truepenny held:
• The defendants clearly violated the statute and they must be found guilty of
murder.
• But wanted the Chief Executive to pardon the defendants.
• Literal interpretation?

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• Justice Keen:
• Took a literal interpretation of Newgarth’s murder law and said that the
defendants should be found guilty of murder.
• But he would not agree to this decision in his personal capacity.

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• Justice Foster disagreed with CJ Truepenny:
• He constructed two arguments on the basis of natural law.

1. ???
2. ???

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• Justice Handy:
• His theory was one of legal realism.
• Looked at public opinion - 90% of the public would find the defendants not
guilty.
• Handy was of the opinion that the Chief Executive would not pardon the
defendants should they be found guilty.

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• Justice Tatting:
• Withdrew from the case, due to uncertainty.

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 Example: Lon Fuller's The Case of the Speluncean Explorers

• 2 justices found the defendants guilty (CJ Truepenny and Keen) and the other 2
found the defendants not guilty (Foster and Handy).
• Tatting withdrew.
• Ultimately the Speluncean Explorers were found guilty of murder and sentenced to
death.

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What is the importance of legislation?

• Legislation is NB because it is an indispensable source of contemporary law.

• It addresses deficiencies in the common law.
• It is a source used by citizens to access and find their rights.
• In general, legislation is used to provide for a fair and orderly society.
• The legislature is also an institution that is capable of responding quickly and effectively to
frequently fluctuating circumstances of a socio-economic nature:
• E.G. the COVID 19 PANDEMIC:
-ORIGINAL LEGISLATION? – parliament – provincial legislature – Acts.
VS
-DELEGATED LEGISLATION? – president – premier of province – regulations.
DISASTER MANAGEMENT ACT & REGS MADE UNDER DMA.

INTRODUCTION 14
What are the advantages of legislation?

• Responds quickly and effectively to frequently fluctuating circumstances.

• Easily accessible and knowable.
• Flexible – can be easily amended.
• Contributes to legal certainty as it is written documents.
• Legislation can be seen as the manifest will of the people in a democracy.

INTRODUCTION 15
What are the disadvantages of legislation?
• Legal certainty is often not a reality as judicial intervention is needed to assign
meaning to legislative provisions.
• Legislation is often too detailed and long-winded.
• Legislation may also be too precise or clear which in turn will lead to the
interpretation of such legislation by the courts.
• Too much legislation can stunt the organic growth of the legal system.
• Legislation leads to tension between majoritarianism and constitutionalism.

INTRODUCTION 16
Who are the interpreters of statutes?
• Interpretation is a public process:
• Drafters (and adopters).
• Courts.
• Executive functionaries.
• Legal profession as a whole.
• All citizens.

INTRODUCTION 17
How do we interpret legislation?

• Via our common law theories of MOST NB – CONSTITUTIONAL VALUES

TELEOLOGICAL INTERPRETATION:
statutory interpretation.  S 39(1)(a): “When interpreting the Bill of Rights, a court
• Via our common law  S 39(2): “When interpreting any legislation, and when d

presumptions of statutory
interpretation.

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6 THEORIES OF INTERPRETATION: 1-5 CL THEORIES:
1. Literalism.
2. Intentionalism.
3. Literalism-cum-intentionalism.
4. Contextualism.
5. Purposivism -> 6.Teleological (adopted
by the constitutional court).
PRESUMPTIONS OF STATUTORY
INTERPRETATION

 Also “canons”.
 Presumptions of statutory interpretation are values
but NOT CONSTITUTIONAL VALUES.
 Prior 1994 the PSI had minimal worth.
 After 1994, they had more worth but constitutional
values takes preference.
 3 EGS. of the presumptions:
3.7 Legislation does not have extraterritorial effect
???

•Note that the presumption has not necessarily been subsumed under the
Constitution, nor is it extensively in conflict thereof and it will remain in its
common-law form.

•NB!!! DOES THE CONSTITUTION HAVE EXTRA-TERRITORIAL

EFFECT? PG 566-567 of the Van Staden article:

?
3.9 Legislation does not violate international law
???

This presumption has been subsumed under the Constitution.

•S 233 Constitution:

“When interpreting any legislation, every court must prefer any reasonable interpretation of
the legislation that is consistent with international law over any alternative interpretation
that is inconsistent with international law.”

•S 39(1)(b) Constitution:
“(1) When interpreting the Bill of Rights, a court, tribunal or forum:-
(b) must consider international law.”
• S 37(4)(b)(i) Constitution:
“Any legislation enacted in consequence of a declaration of a state of emergency may
derogate from the Bill of Rights only to the extent that the legislation is consistent with the
Republic’s obligations under international law applicable to states of emergency.”
3.10. Legislation does not oust or interfere with the
jurisdiction of the courts
???

• Presumption subsumed under the Constitution:

S165(2) Constitution - Judicial authority:

“(2) The courts are independent and subject only to the Constitution and the
law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the
courts.”

S 34 Constitution - Access to courts:

“Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.”