Introduction to Statutory Interpretation 178 (2nd Semester: STATS) Lecture Notes and Prescribed Reading Summary
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Course
Introduction to Law 171
Institution
Stellenbosch University (SUN)
Combined lecture notes and prescribed reading summaries (including cases) for the Introduction to Constitutional Law and Statutory Interpretation 178 first year law module. Easy to understand and clearly written summaries, aids in studying and understanding the work for easier application. Year 202...
Introduction to Statutory Interpretation 178
Term 4: Finals
Disclaimer:
These notes are a compilation of self-written textbook summaries and class slides as
provided by our lecturer. The Law faculty staff are aware of the existence and sale of
notes by myself, Charlize Leoni Gounden . These notes are in no way affiliated with
Stellenbosch University or the Law Faculty. The summaries contained within these
notes are comprised of our prescribed textbook, as such, I do not own/claim any of
the ideas/concepts discussed hereafter as my own.
I study these notes myself and they are therefore comprised to the best of my
ability.
Good luck!
PRESCRIBED MATERIALS:
Botha C Statutory Interpretation: An Introduction for Students 5th ed (2012):
• 91-156
• 159-180
• (86 Pages Altogether)
CASES:
• Rossouw v Sachs 1964 (2) SA 551 (A).
• Jaga v Dönges 1950 (4) SA 653 (A): only the dissenting judgment of Schreiner JA.
• Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) paras 17-26.
• Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC);
2004 (7) BCLR 687 (CC) paras 69 – 115 (judgment of Ngcobo J).
• Van Zyl N.O. v Road Accident Fund 2022 (3) SA 45 (CC) paras 40 – 77 (judgment of Pillay AJ).
• S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) paras 12 – 25. paras 33 – 39; 80
– 86. paras 9 – 10.
• Marshall v Commissioner for the South African Revenue Service 2018 (7) BCLR 830 (CC).
• Saidi v Minister of Home Affairs 2018 (4) SA 333 (CC); 2018 (7) BCLR 856 (CC) paras 12-41.
• African Christian Democratic Party v Electoral Commission 2006 (3) SA 305 (CC); 2006 (5) BCLR
579 (CC), particularly paras 19-35.
, 2
Textbook Summaries:
PAGES 91-156: South African Theories of Interpretation:
2 Main Approaches:
1. Orthodox Text-Based
2. Text-in-Context
The Orthodox Text-Based Approach:
Interpreters primary focus should be on literal meaning of the provision to be interpreted. The
interpretation process should proceed as follows:
• Primary rule: if meaning of text is clear, it should be applied and equated with the legislations
intention.
• If the plain meaning of the words is ambiguous/vague/misleading or if strict literal
interpretation would result in absurd results, the court can deviate from the literal meaning
to avoid absurdity. Golden rule of interpretation. After, the court can use secondary aids of
interpretation to find the intention.
• Secondary aids to interpretation insufficient to find intention? Courts will have recourse to
‘tertiary-aids’.
• Misconceptions regarding doctrines of separation of powers and parliamentary sovereignty
resulted in accepting the idea that the courts function is limited to interpretation and
application of the WILL of legislation as is recorded in its text.
• Doctrine of legal positivism: positivist idea based on validity of decree (command): whatever
is decreed by the state is law and consequently the essence of the law can be found in the
command/decree. Role of court limited to analysis of the law as is and to find intention of
the legislature; it shouldn’t speculate about what law ought to be. Strict distinction between
law and morality {Ties into concepts in foundations; legal positivism vs naturalism}.
• England has common law tradition wherein courts have a creative role regarding common
law principles. Legislation viewed as exception to the rule and altered traditional common
law as little as possible.
• English legislation was drafted to be as precise and detailed as possible to ensure legal
certainty. This birthed the perception/presumption that legislature prescribed everything it
wishes to.
, 3
Roman-Dutch rules of statutory interpretation were based on a functional or purpose-oriented
approach.
Text-based methodology is based on ‘predominance of the word’ and intention of the legislature
is restricted to the literal meaning of the text. Courts over the years began considering the literal
meaning of legislation as an exact depiction of its intention. If legislation has a specific intention it
would be indicated clearly, in unambiguous terms.
Page 93 speaks about different cases relevant to the orthodox text-based approach. All 3
judgements were SCA {also referred to as the Appellate Division} and based on formalistic text-
based approaches of statutory interpretation.
The foundations of this approach lie in legal positivism, parliamentary sovereignty and formalistic
ideas about law, language and understanding
Criticisms:
1. Role of common law presumptions is deduced to a last resort, applied only if text is
unambiguous.
2. Narrow approach, words are regarded as the primary index to legislative meaning
3. Other important interpretation aids are ignored. Context is only sought if legislations text isn’t
clear. No other options to broaden interpretation.
4. Intention of legislature is thereby dependent on clarity of language from the point of view of
the particular court
5. Few texts are clear enough for only one possible meaning.
6. Text-based approach leaves little room for judicial lawmaking, and the courts are seen as
mechanical interpreters of the law.
Slavish and rigid compliance with the doctrine of separation of powers would mean courts can only
interpret law and not make it.
This approach was the preferred method pre-1994.
The Text-In-Context Approach:
Legislative function is a purposive activity. In the text-in-context approach, purpose and object of
legislature is the prevailing aspect of interpretation.
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