2022 2.2 Interpretation of Statutes.pptx

Interpretation of Statutes

1. Interpretation of Statutes August 2022 Dr Muriel Mushariwa

2. Interpretation of Statutes Need for interpretation ( Vehicles in the Park exercise) Interpretation pre- and post 1994 Interpretation by the legislature itself (Interpretation Act 33 of 1957) Interpretation of legislation by the courts Approaches to interpretation Rules of construction

3. Interpretation of Statutes THE INTERPRETATION OF LEGISLATION meaning of the relevant legislative provision “intention” of the legislature   words may be ambiguous or vague

4. Interpretation of Statutes EG public interest; best interests of a child, legal convictions of the community, reasonable person OR   unclear in their application to various situations Absurdity: No vehicles in the park; definition of vehicle

5. Interpretation of Statutes Pre-1994: System of parliamentary sovereignty Focus of interpretation is to ascertain “the intention of the legislature” Difficulty with the concept of the “intention of the legislature Post-1994: Driven by the Constitution Following provisions are critical: ss 1, 2, 39(1), 233, 39(2)

6. Interpretation of Statutes Role of Interpretation Act 33 of 1957 Under review by the South African Law Reform Commission (Discussion Paper 112)

7. Interpretation of Statutes Different approaches to approaches! Coursepack : Literal, functional, teleological/purposive, historical Meintjies : Textual, purposive, contextual, international/foreign law Du Plessis & Corder : grammatical, systemic (contextual), value coherent (teleological), historical, comparative

8. Interpretation of Statutes INTERPRETATION OF LEGISLATION BY THE COURTS   -‘rules’ of interpretation and approaches to interpretation are merely signposts pointing in various directions, and they can contradict each other   The literal approach (cardinal rule) - ordinary’, grammatical meaning '-any authoritative dictionary'

9. Interpretation of Statutes Example: Commissioner for Customs and Excise v Capital Meats CC (in liquidation) 1999 (1) SA 570 (SCA) Question whether mutton from New Zealand was “frozen” or “prepared” for purposes of the Customs and Excise Act 91 of 1964 Importer had to pay much higher customs duties for “frozen’ mutton Court nevertheless decided the mutton was “frozen ”

10. Interpretation of Statutes Moller v Keimoes School Committee 1911 AD 635 European S v Collop 1981 (1) SA 150 (A), Foetus Vrug

11. Interpretation of Statutes ISSUES: -words have several different meanings in different contexts -literal meaning of a word is not necessarily an objective exercise. -statutes are printed in more than one of the official languages -the version signed by the President will prevail.

12. Interpretation of Statutes The functional approach (golden rule)   -ordinary’ meaning of the words used must be followed, unless this would lead to absurdity, injustice or inconsistency, or would be at variance with the intention of the legislature. MAXIM: so as to give it more effect rather than to allow it to perish

13. Interpretation of Statutes Venter v R 1907 TS 910. R v Takawira 1965 Rhod LR 162 (RA) S v De Abreu 1981 (1) SA 417 (T)

14. Interpretation of Statutes ISSUES: -dangerous to speculate about the intention of the legislature.   -what appears to be an absurdity to one person may not seem absurd to another.   -judge’s own intention is substituted for the intention of the legislature, and thus raises the possibility of judicial subjectivity   -the intention of the legislature is in itself an ambiguous concept.

15. Interpretation of Statutes The teleological or purposive approach (mischief rule)   -It is based on the idea that interpretation cannot be isolated from its contextual environment.   -This approach is embodied in the ‘mischief rule’.

16. Interpretation of Statutes Van den Heever JA in Hleka v Johannesburg City Council 1949 (1) SA 842 (A) at 852-3 as follows: „To arrive at the real meaning [of a statute] we have . . . to consider, (1) what was the law before the measure was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy the legislator had appointed; and (4) the reason for the remedy.‟

17. Interpretation of Statutes Smith v Hughes 1960 (2) All ER 859 S v ffrench-Beytagh 1971 (4) SA 333 (T) S v Makhubela 1981 (4) SA 210 (B),

18. Interpretation of Statutes -it places too much emphasis on the context of the Act and not enough emphasis on the text itself. -it gives the courts a fairly creative role. In other words, the purposive approach may allow judges to transgress the boundaries of the judicial function.

19. Interpretation of Statutes The historical approach   -the process in terms of which the rule became law is studied in order to clarify the intention of the legislature.   -Constitutional cases.

20. Interpretation of Statutes RULES OF CONSTRUCTION   Ordinary grammatical meaning in context is to be applied Grammatical meaning Technical meaning -words should not be read in isolation from the other words of the statute.   Restrictive interpretation   -‘any’, ‘all’ or ‘no’ should receive a general construction   - eiusdem generis rule. Sacks v City Council of Johannesburg

21. Interpretation of Statutes Interpretation by implication   -the power to make a regulation normally incorporates the power to withdraw it.   -Implication can also arise from opposites: (express mention of the one implies the exclusion of the other).   Lead Smelting Co v Richardson

22. Interpretation of Statutes Divergences between different translations of legislation   Generally the text signed by the president is the one that is followed.   SECONDARY SOURCES OF ASSISTANCES   -INTRINSIC (INTERNAL) SOURCES  Long title of statute Definition section Subheadings Schedules   -EXTRINSIC (EXTERNAL) SOURCES    Foreign statutes English Bills of Exchange Act of 1882

23. Interpretation of Statutes TERTIARY SOURCES OF INTERPRETATION: PRESUMPTIONS   A presumption is an assumption that the courts automatically recognize as being valid or true.  All unrepealed statues remain law Eiusdem generis  Express mention of one thing implies exclusion of others

24. Interpretation of Statutes There is a presumption against altering the common law unless express provision is made through legislation Presumption against a penalty or punishment without fault

25. Interpretation of Statutes Standard common law defences are available for new crimes eg self defence or duress Presumption against retrospective legislation Criminal laws should favour the person whose rights are threatened.

26. Interpretation of Statutes CONSTITUTIONAL INTERPRETATION S v Makwanyane held to be a “hard case” Hard case are matters where the accepted sources of law are not always clear, may contradict one another, or may offer no clear and acceptable legal sources for the resolution of the dispute.

27. Interpretation of Statutes What does constitutional interpretation entail? The starting point for determining the meaning of a provision is the text itself . The Court quoted approvingly from Jaga v Dönges where the Court held that words and expressions used in legislation must be interpreted according to their ordinary meaning

28. Interpretation of Statutes In S v Mawanyane the court stressed that while the literal meaning must be taken into account, it is not necessarily conclusive.

29. Interpretation of Statutes So it will generally not happen that when we interpret provisions in the constitution that we will simply look at the words and that is the end of the matter.

30. Interpretation of Statutes Purposive interpretation entails teasing out the core values which underpin the fundamental rights in an open and democratic society based on dignity, equality and freedom and then to prefer the interpretation of the provision that best supports and protects those constitutional values.

31. Interpretation of Statutes The purposive interpretation tells us that once we have identified the purpose of the right in the BOR we will be able to determine the scope of the right. The purposive approach to interpretation therefore inevitably requires a value judgment to be made about which purposes are important and protected by the constitution and which are not.

32. Interpretation of Statutes the concepts of human dignity, equality and freedom are also undefined and abstract concepts where the meaning in interpretation will differ from judge to judge. Subjective interpretation Six of the judges premised their arguments on the right to life , with two reasoning that this right could not be qualified. Three based their findings on the fact that the death penalty constituted cruel and inhumane punishment , while two said that the death penalty violated the right to dignity and equality and, as such, was arbitrary and unconstitutional.

33. Interpretation of Statutes Generous interpretation: the provisions are interpreted in such a way as to ensure that ‘individuals receive a full measure of the fundamental rights and freedoms referred to’. the justices acknowledged that subjective constitutional interpretation is unavoidable in constitutional jurisprudence. However, this is not compatible with the duty of the court to give a reasoned decision for its judgment.

34. Interpretation of Statutes Historical interpretation : the court takes the political history of SA into account as a means of interpreting the provision. Court has use of the political history of SA and the drafting history of the 1996 Constitution as an interpretative tool

35. Interpretation of Statutes Contextual interpretation : this interpretation recognises that the Constitution is a document as a whole and cannot be read as if it consists of a series of individual provisions in isolation- rights are interdependent. Context should be used to establish purpose or meaning of a provision and not to limit them . Context includes the history and background of the provisions.

36. Interpretation of Statutes Comparative interpretation Prescribed in section 39(1) Constitutional court examines international law and constitutional decisions of foreign courts Need to be done with the unique domestic context of the Constitution.

37. Interpretation of Statutes