Emmanuel Nhachi.

Statutory interpretation, the use of the teleological approach in the African Christian Democratic Party vs The Electoral Commission and Others case.
InAfrican Christian Democratic Party vs The Electoral Commission and Others (which shall be herein forth be referred to as the ACDP case) the Constitutional court, in the exercise of its judicial functions, was called upon to construe section 14 and 17 of the Municipal elections Act (which shall be herein forth be referred to as the Act).In construing the meaning or application of section 14 and 17 of the Act1, the court came to two conflicting decisions. The first and majority decision was by ORegan J and the last which was the one and only minority decision by Skweyiya J. In approaching their decisions the judges had different theoretical bases and reached different decisions. The more preferable of the two was the judgement given by ORegan J; it was a jurisprudential masterpiece and reflected the true intention of the legislature on how the act should be interpreted. This paper shall dwell upon the ACPD case and show how the court came to invoke the rules of statutory interpretation and how it applied them. The paper shall also show which approach is more preferable to the writer and why, and also show which approach is likely to be favoured by the Zimbabwean judiciary under the dispensation of the new Constitution.

For the question of interpretation to arise the statutory provisions in question must be vague or obscure. It is highly irregular for the court to inquire on the interpretation of the statute if it is clear. Provisions of a statute can be said to be vague or obscure if they are capable of more than one meaning. This is when a court can invoke the rules of statutory interpretation. In S v. Takaendesa2, Beadle CJ referred to the elementary rules on the interpretation of statutes, and cited, with approval, the excerpt from Maxwell on Interpretation of Statutes. The quotation adopted by the Chief Justice continues, Where, by the use of clear and unequivocal language
capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. . . The duty of the court is to expound the law as it stands, and to leave the remedy (if one be resolved upon) to others.This can be taken to mean that when a statute is capable of one meaning it must be given that meaning, the court

can then only assign another meaning if the statute admits of more than one meaning. So it is important to show why the court had to invoke the rules of statutory interpretation.

1 2

Refer to attachment 1 at the end 1972 (1) RLR 162

In the ACDP case, firstly, South Africais a Constitutional supremacynot a parliamentary supremacy state. This means that the Constitution and the values embedded in it takes precedence above all other laws. It also makes the judiciary the guardian of the constitution and its values so when the judiciary is practising is role it must do so in a way which upholds the constitution. In doing so any law which is incongruent to the constitution may be repealed altered or interpreted in a way which upholds the constitution. Secondly by the virtue of section 2 of the Act, any person interpreting or applying the Act must: (a) do so in a manner
that gives effect to the constitutional declarations, guarantees and responsibilities contained in the ConstitutionSome of these values are identified in section 19 of the South African

Constitution as, universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openness. It is evident that the Act was not to be given one literal meaning according to the grammatical expressions used but must be afforded an interpretation which upholds constitutional values. The fact that the literal meaning of the provision may be disregarded in the effort to uphold these values meant that the statute was capable of another meaning and therefore obscure; the rules of statutory interpretation had to be invoked. . ORegan J tackled the issue of the jurisdiction of the court. It had been submitted by the respondent (Electoral Commission) that the court had no jurisdiction because it had not been given that jurisdiction by the Act and that the case was not a constitutional matter so the constitutional court has no jurisdiction. ORegan J on the first issue raised the statutory interpretation maxim that legislation should not be presumed to have intended to oust the courts jurisdiction when it is not expressly stated as such. There was no direct provision in the Act which ousted the Constitutional courts jurisdiction so the maxim applied to the case before the court. On the second point it was stated that by the virtue of section 2 of the Act the act had to be interpreted in a manner which promoted the spirit, purport and objects of the constitution, it was also enacted to give effect to these rights so its proper interpretation is one which gives effect to these rights, therefore this makes it a constitutional matter. This does not only show how the section made the case a constitutional matter but also how it seems that the legislature intended the court to use a value coherent or teleological approach in interpreting the provisions of this act. The teleological approach to interpretation is an approach which is informed by the natural law school and holds that there are certain basic values and principles which form the

foundation of the legal system and the courts should always endeavour to interpret statutes in a manner as to promote those values.The legislative enactment, according to this theory merely lays down a general guide and gives the courts wide leeway in which to deal with individual cases as the justice of the case demands in light of the reason and moral sense of men. In the light of this case the Court just had to use the statute as a general guide but the ethical situation among the litigants will be the determining factor.In pursuit of the Teleological Approach the judge is allowed to attribute strain or improbable meaning to words in order to arrive at an outcome which serves the higher values of the legal system. In the ACDP case it was mentioned that the provisions of the act had to be construed in a manner which promoted the spirit, purport and objects of the constitution. This shows that the legislature wanted the act to be interpreted in a way which promoted the values inherent in the constitution or higher values of the legal system. It is therefore safe to say that that the legislature intended the use of the teleological approach when interpreting this statute because it was the one which promoted these values. In line with the intention of the legislature ORegan J used the teleological approach to interpretation as the theoretical basis for his judgement. In finding whether the applicant had complied with the provisions of section 14 and 17 of the Act ORegan J stated that the provisions of section 2 had to be borne in mind. To stress the importance of these values imbedded in the constitution he showed that the universality of franchise was a badge of dignity and personhood. It showed that everyone counts despite their social background all constitute a united South African nation with intertwined destinies in a single interactive polity dignity and of personhood. He quoted that, Rights may not belimited without justification
and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement.This shows the impact of section 2 of the act in applying the

constitutional values, it was imperative that the court should seek to expand rather than contract to promote rather than demote the values inherent in the constitution. The important value here was enfranchisement and the end that must be desired is one which seeks inclusion rather than exclusion therefore promoting the teleological approach. Literarily a political party could not contest if it had complied with the procedures set out in Section 14 and 173ORegan J when determining whether there was compliance with these provision was mindful of the reasoning of Van Winsen AJA in Maharaj and Others v
3

See attachment one in bibliography.

Rampersad, which basically postulated that the enquiry of whether there has been compliance must be based upon the facts. There must be a comparison between the actual position according to the provisions and what it ought to be. The court can hold that there was compliance even if the two are not identical. What is of importance in the enquiry is the object sought to be achieved and whether it has been achieved. He discredited the use of the literal approach when he stated that in the quest to find out whether what ACDP had done constituted compliance a narrow textual and legalistic approach is to be avoided. The literal approach was further relegated into the gutters when he pointed out that acommonsensical approach had to be taken and the court must not take undue concern of legalism, linguistic analysis, semantics and phonetics of whether it is peremptory or directory, they do not tell a court how to interpret. This shows that the justice was shunning away from the literal approach which sticks to the language used in the provisions.He was leaning onthe teleological approach by going to all efforts to point out that the language of the statute was of less importance but what was important was the spirit of the constitution. On tackling the issue of whether the facility of making a central bulk payment was in conflict with the provisions of the section 14 and 17 of the Act. It was held that it was the purpose of section 14 to ensure that a deposit is paid by a political party to establish that they have a serious intention of contesting the elections. It was also held that to interpret the provision narrowly would defeat the central purpose of the statute. On this instance the purposive theory was used. The Purposive theory has its rationale in the fact that a statute is a legislative communication between the legislature and the public that is inherently purposive. The interpreter must therefore endeavour to infer the design or purpose which lies behind the legislature. In interpreting the provisions in light of their purpose the Judge was using the purposive approach. He went back to the teleological approach when he summed up saying that, the interpretation which accepts that the commission to act in such a manner which facilitates
the participation in elections and is far more consistent with our constitutional values, than reading the section strictly to prohibit such a payment system. Therefore it was held to be in compliance

of the Act. The judge did not just stick to the teleological approach but also used the purposive approach. This shows that heremained cognisant to the fact that these rules are servants not masters they cannot be applied unqualifiedly but they must be tools to be used to aid the judiciary in its role of interpreting statutes. The rules were used in a manner which made them complimentary to each other.This also makes ORegan Js judgement more preferable.

The other question in the arena of interpretation was how the words deposit equal to a
prescribed amount, if any payable by means of a bank guaranteed cheque in favour of the of the commissionin sections 14(1)(b) and 17(2)(d) had to be construed.On 19 January, the

Commission was holding funds equivalent to R10 000 on behalf of the applicant which had not been allocated to any particular local government election and that the availability of that surplus was sufficient to constitute a deposit for the Cape Metro within the terms of the.Those funds had originally been paid to the Commission by way of bank guaranteed cheque at its national office for the purposes of paying election deposits. The only shortcoming in the payment was that the applicant had failed, prior to the expiry of the deadline, to notify the Commission that those surplus funds should be used to meet the deposit due in Cape Town. ORegan J pointed out that in considering whether the surplus payment held by the commission should be considered to be in compliance with section 14 and 17, the importance of promoting multi-party democracy and the political rights of citizens should be borne in mind. In other words the provision had to be interpreted teleologically. The payment of the deposit was held to have the purpose of showing a strong intention and notification to contest and giving details of candidates. The justice was right in stating that,there would be little purpose served by a narrow interpretation of sections 14 and 17
concluding that that surplus did not constitute adequate compliance with the section.No other party or candidate is harmed by a more generous interpretation which would hold the provisions of sections 14 and 17 to have been met.The provisions had to be relaxed in a way which facilitates

participation in elections. To drive the point home it has held that,in approaching the
interpretation of provisions of electoral legislation, courts and the Electoral Commission must understand those provisions in the light of their legislative purpose within the overall electoral framework. That framework must be understood in the light of the important constitutional rights and values that are relevant.ORegan J conjoined a purposive approach again with the teleological

approach. The passage shows that the provisions had to be considered as a whole and give due respect to the reasons or object for which they were enacted for. And this purpose must be realised together within the teleological point of view which supports the rights and values inherent in the constitution. This is what led the Judge to set aside the ruling of the Electoral Court and hold that ACDP was in compliance with the provision. The other judgement which took the approach which this paper does not prefer is that of Skweyiya J. Skweyiya J took a more literal approach to interpretation. The literal approach

states that the court must look at the wording of the statute and give it its ordinary meaning when interpreting. The main focus of his Judgement was the wording of the statute. He held that they are peremptory and they had to be adhered to. The first issue he alluded to was requirements for a registered political party to participation local and government elections under section 14. It was held that the nomination forms and payment of deposits must be submitted simultaneously in order for there to be compliance with the section. The second contention of the Judge was that the Electoral commission had no discretion to condone noncompliance with the act. This shows that the judgement based more on procedural rules and regulations which have a danger of sometimes limiting participation in elections contrary to the values inherent in the constitution. According to Lord Wilberforce4Literalism could
result in a myopic attention to words which was blind to the wider purpose; and the value-based approach, concentrating as it did on the rights of the individual, could frustrate the purpose of legislation passed for the wider public good In a modern State, where legislation is the tool by which government policy is implemented, it is simply not sensible to persist with styles of interpretation that can result in the courts frustrating that policy. Interpretation should facilitate the implementation of policy rather than obstructing it. The State should not always be regarded as the enemy . With all

due respect the Skweyiya J in his decision he forgot that the law is made for the people not the people for the law and the Municipal Elections Act for the Elections not the Elections for the Act. Skweyiya J went to great lengths to prove that it was an enormity of the task ofpreparing for the elections so everything must be done timeously. It was also held that it is critical for the fulfilment of the constitutional commitment to free and fair elections that parties engage with the democratic process and bear the share of the responsibility for its effective functioning otherwise it will compromise the legitimacy of the election. It is my submission that strict adherence to electoral procedures is what actually compromises the legitimacy and fairness of the election. It was proffered that if multiparty democracy is the end then a democratic process must be the means. A proper procedure must be used to attain the desired outcome. It was also stated in Skweyiya Js judgement that the act was a roadmap to a democratic process. His judgement shows that it was based on the literal approach because of the strict adherence to the wording of the statute. This approach was not appropriate since it followed strictly, the letter of the law other than an approach which was set out in section 2 of the Act.

inBlack-Clawson International Ltd v PapierwerkeWaldhof-Aschaffenburg A/G[1975] AC 591, 629 (HL) Lord Wilberforce

On touching on the question whether the strict adherence of the requirements of section 14 and 17 of the Act constituted an infringement on the right to vote, Skweyiya J held that the mere exercise of the right to vote without the proper arrangements for its proper exercise does nothing for democracy. It was also held that regulation of the right to vote is necessary in order to ensure the proper implementation of the right to vote. Regulation was held to be important to prevent hundreds of political parties with a hodgepodge of compliance with the procedure needed, to attempt to stand for elections. The right to vote was held to be empty without an absolute framework of regulations and all the nitty-gritties and nuts and bolts of procedure must be fully complied with. Compliance also had to be absolute rather than partial or substantial. The decision of the judge was that ACDP had not complied with the Act so it must not be allowed to participate in the election therefore the application must be dismissed. It is evident that a strict literal approach was at play here. Much weight was given to election procedures and to be precise, every bolt and nut of it. In this case a teleological approach had to be preferred more than a literal approach. The legislature had seen that a strict literal approach will put undue importance on formalism and devalue the right to vote so thats why in section 2 of the act it wanted the Act to be interpreted in a way which upholds the constitutional values such as enfranchisement. It is my submission that when interpreting the judge should have too these values in consideration and try to reach a decision which is just and fair, he is in the justice department after all. According to JW Wessels, Voet feels that law is a branch of morals and that the judge in
interpreting the law must always bear in mind the fact that the ultimate end and object of all law is to regulate relations of individuals according to that sense of right and wrong that prevails in the community Equity then is necessary to interpret the meaning of the law-giver, and to apply the law to the vast variety of cases that present themselves5The Constitutional court is the highest court

on constitutional matters and it must endeavour to promote constitutional values and not in a twisted way. It is public values and polices which leads to the enactment of laws. In various democracies the people are consulted when making the constitution and thats what makes it so supreme. An interpretation of the law which favours these values must be preferred over and interpretation which infringes upon them. The realisation of these values cannot be achieved by formalism and various limitations upon them.

JW WesselsThe History of the Roman-Dutch Law (1908) 327 quoted in Devenish Interpretation of Statutes 42.

When interpreting upon rights in the constitution a teleological approach must be preferred. It is a statutory interpreting maxim that statutes regulating a constitutional right must be interpreted liberally. It was held in S v. Ushewokunze that, in arriving at the proper meaning
of a constitutional provision guaranteeing a right, the court should endeavour to expand the reach of the right rather than attenuate its meaning and content. What is to be accorded is a generous and purposive interpretation with an eye to the spirit as well as the letter of the provision, one that takes full account of changing conditions, social norms and values. The aim must be to move away from formalism and make human rights a practical reality. It was also held in Minister of home

affairs and others v Dabengwa and another that,For the general principle relating to the
interpretation of provisions which interfere with fundamental rights and liberties a statute depriving the subject of his rights should in a case of ambiguity be restrictively interpreted in favour of liberty, so as to give the words that meaning which least interferes with the liberty of the individual. This shows that imparting a narrow, artificial, rigid and pedantic interpretation

such that of Skweyiya J goes against the very purpose of the exercise of the right to vote. A teleological interpretation applied by ORegan Js realises the value of the rights in the constitution. A teleological approach attenuates and promotes constitutional values, the values which the people directly put forward to govern them. One can argue that the teleological approach makes the law unpredictable and sometimes inconsistent. It is my submission that the law is not made for the past but the future so the questions which arise are, is the future predictable? And is it also consistent and determinable? If the answer is no then why should the law be predictable and consistent? Laws are made to regulate society and society is not static but dynamic so the law must be flexible enough to accommodate change.Interpretation therefore is not an archaeological discovery, but a dialectical creation. Interpretation must be hermeneutically applied to law to achieve meanings in line with the current problems and circumstances. According toDevenish6 this approach has as its fundamental premise the realization of justice for the
individual.Justice, morality and equityare critical concepts that must be practically adhered to in order for a proper application of this approachit breeds uncertainty or unpredictability. This is an understandable criticism in light of its pursuit of higher values or morality.This approach is not

there to let the courts to assume the functions of the legislature but for the sake of justice. Judges should also decide cases in accord with the general welfare or in furtherance to the achievement of basic democratic values.
6

Devenish Interpretation of Statutes 44.

(b) The Approach which is likely to be taken by the Zimbabwean judiciary under COPAC is that given by ORegan J. In the founding provisions of the COPAC draft section 2 establishesthe supremacy of the constitution. It is further stated that the obligations imposed by the constitution are also binding on the judiciary. This means that Zimbabwe is a constitutional democracy and in interpreting the court would have to bear in mind the values in the constitution. It also means that even if the piece of legislation appears to be peremptory it would never be interpreted in a way which devalues the values imbedded in the constitution. These funding values are pronounced as supremacy of the constitution, rule of law, principles of good governance such as multiparty democracy and an electoral system based on universal suffrage and equality of votes. Taking all of this into account there will be just but one probable decision for the court to take. The decision will be a more liberal approach which promotes these values such as that given by ORegan J. Aglance at the national objectives in the COPAC draft also shows that the courts would be more likely to take the approach taken by ORegan J. Section 8 holds that the objectives must guide all institutions and agencies of government in formulating and implementing laws. Policy decisions must also enhance and promote a sustainable free and democratic society. The draft constitution also expressly state that, regard must be had, to the objects set out in this
chapter when interpreting the states obligations under this constitution and any other law. It

doesnt get clearer than this, the judiciary has to be cognisant of the policies and in doing so it has to take a more teleological approach when it is interpreting statutes. With the dispensation of the COPAC draft the judiciary is more likely to take the decision of ORegan J because it promotes the same values such as those in the draft which are to be regarded as the driving force behind all decision making in all spheres of government. Furthermore section 11 clearly states that the state must take all practical measures to protect the fundamental rights and freedoms enshrined in chapter 4 and promote their full realisation and fulfilment. The declaration of rights and freedoms in chapter 4 states that the state and its institutions must respect, protect, promote and fulfil the rights and freedoms set out in the chapter. Even the limitations in section 86 state that they must be fair, reasonably necessary and justifiable in a democratic society. Section 46(1) directs the court when interpreting the chapter to give full effect to the rights and freedoms enshrinedin it.Values such as those in

section 3 for instance multiparty democracy and an electoral system based on universal suffrage and equality of votes have to be promoted. Due regard must also be given to the national objectives given above. And when interpreting an enactment the court had to promote the objectives in chapter 4. This shows that the constitutional is leaning more to a teleological approach to interpretation. The constitutional values are directed towards justice equality and liberty of individuals so why not prefer for an interpretation which seeks for the same results. The draft constitution promotes political rights such as participating in politics and to stand for an election. Every court is ordered to ensure that formalities relating to proceedings are kept at minimum and the court while observing the rules of natural justice is not unreasonably restricted by procedural technicalities. This shows the movement of the court from formality in the course of the pursuit of justice. It also shows that alike the teleological approach the court must be guided by rules of natural justice. These rules promote justice and equity in courts other than a literal approach with no regard as to what is just or equitable. Elections in section 155 are held to be based on universal adult suffrage and equality. It also supports effective participation. The judiciary is to be guided by principles of justice and the role of the court is safeguarding human rights, freedoms and the rule of law. Section 175 is directed to the constitutional court and it states that it must make orders that are just and equitable. It is clear from all of these provisions that the court under the dispensation of the COPAC draft would make a judgement which is leaned towards the teleological approach and identical to one made by ORegan J. Guided by the principles set out in the draft, the Courts ruling cannot be contrary to the one given by ORegan J. The COPAC draft upholds principles of justice, equality, equity, democracy and freedom among other virtues. This is exactly what the teleological approach stands for and also represents the kind of decision which our courts, in the dispensation of the COPAC draft, will reach.