The text in context approach to intepretation.pptx

notes

1. THE TEXT IN CONTEXT APPROACH TO INTERPRETATION

2. 2 Common law approaches ORTHODOX TEXT BASED Literal rule Golden rule Mischief rule TEXT IN CONTEXT Purposive approach Teleological or value coherent approach

3. PURPOSIVE APPROACH focuses on the purpose or objective of the law rather than on the intention of Parliament. The term “intention” is deemed too subjective and quite unsearchable, while the concept of “purpose” is deemed to be more objective and therefore ascertainable by careful investigation

4. Why? Statutes are inherently purposive in nature They exist to give legal backing to public policy What are the policy considerations behind a statute / statutory provision? What result was intended to flow from its application The interpretation of a statute should start with an inquiry into the objectives of the statute. Encompasses the mischief rule but is wider than it.

5. Maunsell v Olins  [1975] AC 373 The first task of a court of construction is to put itself in the shoes of the draftsman – to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language .’ Lord Simmons

6. R v S of S for Health ex parte Quintavalle  (on behalf of Pro-Life Alliance) [2003] 2 WLR 692, "The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment….While it is impermissible to ask what Parliament would have done if the facts had been before it, there is one important question which may permissibly be asked: it is whether Parliament, faced with the taxing task of enacting a legislative solution to the difficult religious, moral and scientific issues mentioned above, could rationally have intended to leave live human embryos created by CNR outside the scope of regulation had it known of them as a scientific possibility. There is only one possible answer to this question and it is negative .“ ( Lord Birmingham)

7. The Purposive Approach in Roman Dutch Systems

8. Dadoo Ltd and others v Krugersdorp Municipal Council 1920 AD 530 at 543 “Speaking generally, every statute embodies some policy or is designed to carry out some object. When the language employed admits of doubt , it falls to be interpreted by the Court according to recognized rules of construction, paying regard, in the first place, to the ordinary meaning of the words used, but departing from such meaning under certain circumstances, if satisfied that such departure would give effect to the policy and object contemplated. I do not pause to discuss the question of the extent to which a departure from the ordinary meaning of the language is justified, because the construction of the statutory clauses before us is not in controversy. They are plain and unambiguous. But there must, of course, be a limit to such departure. A Judge has authority to interpret, but not to legislate, and he cannot do violence to the language of the lawgiver by placing upon it a meaning of which it is not reasonably capable, in order to give effect to what he may think to be the policy or object of the particular measure.” INNES J

9. Jaga v Donges 1959 (4) SA 653 Right from the outset the interpreter may take the wider context of provision ( eg its ambit and purpose) into consideration with the legislative text in question. 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 the wider context may even be more important than the legislative text. Once the meaning of the text and the context (language-in- context) is determined, it must be applied, irrespective of whether the interpreter is of the opinion that the legislature intended something else

10. Ebrahim  v Minister of the Interior 1977 (1) SA 665 (A) Literal v Purposive Approach

11. Use of extrinsic material to discover the purpose / objectives of the statute Legislative history ( pre-parliamentary, parliamentary material) Historical context Preceding statutes Related statutes Statutes in other jurisdictions

12. Teleological / value coherent approach Motivated by the desire to give life to the values underlying the legal system Values articulated in section 3 of the Constitution.

13. Section 3 of the Constitution Founding values and principles of the state (1) Zimbabwe is founded on respect for the following values and principles— (a) supremacy of the Constitution; (b) the rule of law; (c) fundamental human rights and freedoms; (d) the nation’s diverse cultural, religious and traditional values; (e) recognition of the inherent dignity and worth of each human being; (f) recognition of the equality of all human beings; (g) gender equality; (h) good governance; and ( i ) recognition of and respect for the liberation struggle .

14. CONT’D (2) The principles of good governance, which bind the State and all institutions and agencies of government at every level, include— (a) a multi-party democratic political system; (b) an electoral system based on— ( i ) universal adult suffrage and equality of votes; (ii) free, fair and regular elections; and (iii) adequate representation of the electorate; (c) the orderly transfer of power following elections; (d) respect for the rights of all political parties; (e) observance of the principle of separation of powers; (f) respect for the people of Zimbabwe, from whom the authority to govern is derived; (g) transparency, justice, accountability and responsiveness;

15. CONT’D (h) the fostering of national unity, peace and stability, with due regard to diversity of languages, customary practices and traditions; ( i ) recognition of the rights of— ( i ) ethnic, racial, cultural, linguistic and religious groups; (ii) persons with disabilities; (iii) women, the elderly, youths and children; (iv) veterans of the liberation struggle; (j) the equitable sharing of national resources, including land; (k) due respect for vested rights; and (l) the devolution and decentralisation of

16. Section 46(1) of the Constitution (1) When interpreting this Chapter, a court, tribunal, forum or body— (a) ………………… (b) must promote the values and principles that underlie a democratic society based on openness , justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3; (c) ………………………. (d) …………………….. (e) ……………………..

17. S v Zuma & 2 Others CASE NO : CCT/5/94 “While we must always be conscious of the values underlying the Constitution , it is nonetheless our task to interpret a written instrument . I am well aware of the fallacy of supposing that general language must have a single " objective" meaning. Nor is it easy to avoid the influence of one's personal intellectual and moral preconceptions . But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean”.

18. MINISTER OF HOME AFFAIRS V FISHER 1980 AC [319] If the language used by the lawgiver is ignored in favour of a general resort to "values" the result is not interpretation but divination . Compare and contrast the two judgments handed down in African Christian Democratic Party v The Electoral Commission and Others 2006 (5) BCLR 579 (SCA

19. Assessment of the text in context approaches advantages Leads to justice in individual cases Allows the application of the law to be extended to new technologies and development Recognises the role of judges to develop the law and allows for legal principles to adapt to the needs of a dynamic society disadvantages Makes the law less certain , it is impossible to predict when judges will use this approach Provides room for unelected officials ( judges) to make laws Can lead to a naked usurpation of the legislative function under the thin disguise of interpretation. if a gap is disclosed, the remedy lies in an amending Act‟.