Legal interpretations extra notes

1. Theories
a) Literalism exact words of statute irrespective of absurdities
- Argument: literalism best method as you remain objective
- Golden rule:
- Grey v Pearson
- Clear and ordinary language is vey rarely found, one often needs to narrow
-

down the meaning of text (intention of legislature lies in the language)

Literalism-cum-intentionalism: combination of literalism and invention

b) Intentionalism
- Purpose is to give effect to true intention of legislature
- Post 1994: moved away from finding out the pure intention of the legislature:
-

no longer sovereign
Now: use the intentionalism method with grammatical method: what does the

text say and what were the legislature aiming to say

Applied to achieve purposive and teleological method

c) Contextualism
- Everything exists in context
- S v Zuma
- Ex Visceribus Actus: read the statue as a whole (interact-textual context)
-

cannon of construction of contextualism as it developed

Contextualism and purposivism: interpretive twins
Mischief rule:

d) Purposivism:
- Intention is to get ball in the net for the purpose of scoring a goal
- What is the effect of what they intend to do
- Purpose can only be ascertained with regard to context
- Where purposivism and language: conflict purposive approach prevails

e) Historical Interpretation: an instance of contextual interpretation

- Mischief rule : 4 questions
- Combines purpose and context
f) Comparative
2. Theoretical positions to note (beyond purposivism)
a) Judicial activism: judicial or free theories
- Based on the idea that judges have a creative role in statutory interpretation
and application

Entails filling in the gaps: judiciary uses common law to remedy legislative

defects
b) Objectivism
- Not much response in our case law
- Judiciary is legislatures delegates
- Statute only really obtains meaning once it is applied in a concrete situation
- Function statute: specific circumstances

3. Grammatical interpretation
- S v Zuma Case
- ACDP case
-

a) Canons of grammatical interpretation

Primary rules of contraction:: ordinary meaning rule, golden rule
Secondary rules of construction: venturing into contextualism in order to make
sense in a grammatical way, e.g. Using the statute instead of just a dictionary

to make sense of text

Tertiary aids in construction: presumptions

ORDINARY MEANING RULE:

Very often that a text can have more than one meaning, thus context is used to

narrow down the meaning

Clarity and unambiguity: suppose to be at the for front of statutory instrument,

3.1.

functions of readers assessment of language; understanding is shaped by a pre-

understanding. THUS often leads to more meanings than a single meaning

De Beers Industrial Diamond Division (196 e-f: dictionary meaning is only a

guide)
Identifying the ordinary meaning of a text but towards a limited amount of

meanings
Each person may interpret a text differently, so ordinary meaning is taking an
array of meanings and trying to narrow it down using secondary and tertiary

3.2.
3.3.

rules of contractions
Usage and conventions of natural language:
Dictionaries
Syntax
Technicalities
Archaism
Definition clauses
Interpretation Act assist with grammatical meaning ( extra textural context)
Dictionary aspects: actual dictionaries, interpretation act and definition clauses
Language not used unnecessarily

Every word in a statute has a meaning (signifiers)

No surplusage
Can also be seen a canon of construction
Except: ex abundanti cautela: some statutes are repetitive to caution again
misinterpretation.

3.4.
-

Multilingualism and legislation

11 official languages
Statutes are written in English and Afrikaans not all 11 languages
s 240 and s 82 of constitution: deal with conflict in languages and translation
which text will prevail (usually English)

4. Purposive interpretation
- teleological approach, effect directed approach or value based approach
- Indicates the purpose of legislation
- Thus purposive reading takes into account the contextual framework
- Mischief rule
- Language is not a primary consideration: when in conflict with purpose,
-

purposive approach prevails (see ACDP )

If you go to far into purposivism, you risk subjectivity and arbitrary

application of law
Effect of the constitution: introduced a value laden aspect to the purposive

interpretation of legislation
Section 39 (2)
See ACDP text: legislative text and purpose were at odds, purpose prevails
especially if rights are affected
a) Purpose: Act as a whole, context of relating to efficient running of
elections, promoting multi-party democracy, right to vote and participate
in elections etc.

4.1.
-

Substantive compliance
peremptory and directory provisions: e.g. Must v may
See ACDP case - reference to Weenen case on what substantive compliance
means
a) Correct approach common sense approach (define common sense

approach)
Measure conduct against intention of legislature as ascertainable by means of
language, purport and purpose of the Act as a whole, and in terms of the

specific requirement at hand

Constitutional context justified deviation from clear text due to effect-directed
and value-laden approach

Considerations that informed this argument : poltical rights section 1(d),

section 19, 39(2)etc.

5. Presumptions
- Derived from common law
5.1.
Rules of interpretation that fits into methodology
- Ordinary meaning rule (literal approach)
- Golden Rule (literal approach)
- Mischief rule (context approach)
- Eiusdem Generis rule (context approach)
- Ratio (context approach)
5.2.
Presumptions (see Botha text book) can be used anywhere
a) Statute law is not unjust , inequitable or unreasonable
- Therefore onerous provisions get narrow interpretation (encroachment on
-

existing rights, imposing burdens and penal provisions as small as possible)

Preference for the Least Onerous Interpretation (because we assume that statue

law is not unjust, inequitable or unreasonable)

Non discriminatory content
Audi alteram partem
Dealing with absurdities ( deal with it as far as possible to ensure that it is not
^)
b)
c)
d)
e)
f)

Statute law applies generally

Statue law promotes public interest
Statute law does not interfere with jurisdiction of courts
Statue Law does not violate international law
Statutes do not bind the State ( been eradicated due to the introduction of

Constitution)
Presumptions have existed for many years and all still comply with the
Constitution, except presumption (f)
g) Statue law does not alter existing law more than is necessary (section 12)
h) Statues do not apply with retrospective effect, but
Can be excluded
Confirm existing law
Clarify or settle doubt
Procedural matters
Benefits the subject
i) Statue law is not invalid or purposeless (section 172)
j) Reference to valid conduct
k) Delegated powers exercised by delegatus
l) Remedial statutes must be construed generously ( works together with
number 1)
m) Statue law has no extra-territorial effect
n) Same words and phrases bear same meaning

6. Constitutional interpretation ( chapter 9)

Interpretation of any law so that it will be in line with or tested against the

constitution
Section 39 (1)(2): we must promote the contents of Bill of Rights: we always

measure any law against constitution

S v Zuma : distinguish between interpretation of the constitution (what is the
meaning of section 12, for example) and interpretation of ordinary law in

light of constitution
Section 2, 172: substantive constitutialism: the constitution contains material

and substantive foundation for the interpretation of all law

Methods: grammatical, systematic, teleological, historical and comparative,
operates inclusively, not in isolation

7. S v Zuma assignment:
- 5 methods were used by CC
- This how they used it and where they used it.