Chapter 5

South African theories of Interpretation

Table OF CONTENT
• The orthodox text-based approach
• The text-in context approach
• The influence of the Constitution
• A practical, inclusive method of interpretation
1. The orthodox text-based approach
• This approach requires the interpreter to concentrate primarily on the
literal meaning of the provisions to be interpreted.
• It is the primary rule of interpretation that, if the meaning of the text
is clear, it should be applied.
NB If the ‘plain’ meaning of the words is ambiguous, vague or
misleading, or if a strict literal interpretation would result in absurd
results, then the court may deviate from the literal meaning to avoid
such an absurdity.
• The court will then turn to secondary aids to interpretation to find the
intention of the legislature. (dictionary or commission’s reports)
• Only when these secondary aids to interpretation prove insufficient to
ascertain the intention, will the courts have recourse to the tertiary
aids to construction.

• The text-based approach was introduced into South African legal

system from the English law.
• The text-based methodology is based on the predominance of the word
and the intention of the legislature is demoted to the status of the literal
meaning of the text.

Criticism of the text-based approach:

• The normative role of the common-law presumptions (such as that
legislation applies in respect of future events) during the interpretation
process is reduced to a mere last resort, only to be applied if the text is
ambiguous.
• The narrow approach means that words are regarded as the primary
index to legislative meaning.
• Other important internal and external aids to interpretation which
could be applied to establish the meaning of text-in-context, are
ignored and only used if the text is not clear.
• The intention of the legislature is ultimately dependent on how clear
the language used in the legislation may be to a particular court.
• Very few texts are so clear that only final interpretation is possible.
• The text-based approach leaves very little room for judicial law-making.
• The text-based approach was the predominant approach to
interpretation in South Africa prior to 1994, and regrettably many of
the courts still follow the traditional plain meaning approach.
2. The text-in context approach

• In terms of this approach, the purpose or object of the legislation is the prevailing
factor.
• The context, including social and political direction, is also taken into account to
establish the purpose of legislation.
• The ‘mischief rule’ is regarded as the forerunner of this approach. This rule
acknowledges the application of external aids for interpretation such as the
commission’s reports).
• The search for the purpose of legislation requires a purpose-orientated approach
which recognises the contextual framework of the legislation right from the outset,
and not only in cases where the text-based approached has failed.
• In the case of Jaga v Donges, 1950 , the first concrete efforts were made to
utilize the wider context to move beyond the plain grammatical meaning to
ascertain the legislative purpose.
• Judge Schreiner indentified the following guidelines for interpretation in the
minority decision in the above case:
• Right from the outset, the interpreter may take the wider context of provision into
consideration.
• Irrespective of how clear or unambiguous the grammatical meaning of the legislative
text may seem to be, the relevant contextual factors must be taken into account.
• Sometimes this wider context may even be more important than the legislative text.
• Once the meaning of the text and context is determined, it must be applied,
irrespective of whether the interpreter is of the opinion that the legislature intended
something else.
• According to the text-in context approach, the judiciary has inherent
law-making discretion during interpretation and the courts may
modify or adapt the initial meaning of the text to harmonise it with
the purpose of legislation.
• The courts are therefore far more flexible, and is not limited to mere
textual analysis and mechanical application of the legislation.
3. The influence of the Supreme Constitution

• Since 27 April 1994 the debate about a text-based approach versus a

text-in-context approach to interpretation has become irrelevant.
• Since both the interim and the 1996 Constitution included an express
and mandatory interpretation provision, statutory interpretation now
has to be conducted within the value-laden framework of the
supreme Constitution which is the highest law of the land.
3.1 Constitutional Supremacy
S2 provides “This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and obligations imposed by it must be fulfilled”
S2 must be read together with the following sections of the Constitution:
 s 7 of the Constitution which provides that the Bill of Rights is the cornerstone of the SA
democracy and that the state must respect, protect, promote and fulfil the rights in the
Bill of Rights;
 S 8 (1) which states that the Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state
 S 8(2) which provides that the Bill of Rights applies to both natural and juristic person.
These provisions mean that the Constitution is supreme and all laws and conduct , all
theories, maxims of interpretation are influenced and qualified by the Constitution.
3.2 The interpretation clause
• Sec 39 (2) of the Constitution provides that when interpreting legislation…
courts must promote the spirit, purport and objects of the Bill of Rights.
• Since this section is a peremptory provision, courts must review the aim
and purposes of legislation in the light of the Bill of Rights.
• Even before a particular legislative text is read s 39(2) forces the
interpreter to promote the values and objects of the Bill of Rights.
• So, plain meaning clear or unambiguous texts are no longer sufficient.
• NB interpretation of a statutes starts with the Constitution and not with
the legislative text.
3.3 The constitutional values
• The preamble to the Constitution refers to the society based on democratic values.
• Democratic values are: human dignity, the achievement of equality and the
advancement of human rights and freedom, non-racialism and non-sexism, supremacy
of the Constitution and the rule of law, universal adult suffrage, national common
voters roll, regular elections and a multi-party system of democratic govt to ensure
accountability, responsiveness and openness.
• Since courts are the guardians and enforces of the values underlying the Constitution,
they have to make a value judgements during interpretation and application of all
legislation.
• Therefore, the interpretation of a statutes can no longer be a mechanical reiteration of
what was supposedly intended by Parliament, but rather what is permitted by the
Constitution.
4. Practical, inclusive method of interpretation per Du Plessis & Corder

• Du Plessis & Corder originally suggested five practical interrelated

techniques for constitutional interpretation and applied these methods
for statutory interpretation as well.
• These suggested technics form the basis of a practical, inclusive method
of interpretation which is used in the next chapter.
• These components of a practical methodology are complementary and
interrelated and should be applied in conjunction with one another.
• This practical and inclusive method consists of the following components:
4.1 The language aspect: Words and phrases –
• This aspect acknowledges the importance of the role of the language
of the text.
• It focuses on the linguistic and grammatical meaning of the words,
phrases, punctuation, sentences and other structural components of
the text
• It does not imply a return to the orthodox text-based approach, but
merely acknowledge the importance of the legislative text.
4.2 The systematic aspect: Structure and context

• This method is concerned with the clarification of the meaning of a particular

legislative provision in relation to the legislative text as a whole.
• This is also known as the holistic approach and
• refers to the principle that words, phrases and provisions cannot be read in isolation.
4.3 Teleological interpretation: the value-based aspect-
• This aspect emphasizes fundamental constitutional values and value coherent
interpretation.
• The aim and purpose of the legislation must be ascertained against the fundamental
constitutional values.
4.4 Historical aspect

• This method refers to the use of the historical context of the legislation
• and includes factors such as the circumstances which gave rise to the
adoption of the legislation.
4.5 Comparative aspect
• This aspect refers to the process during which the court examines the
interpretation of similar legislation by foreign courts, as well as
international law.