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Summary IOS 2601 - EXAM QUESTIONS AND ANSWERS
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- University Of South Africa (Unisa)
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INTERPRETATION OFSTATUTES
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IOS2601
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EXAM PACK
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,QUESTION 1
In Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) 32D- E the court emphasised that “the orthodox primary rule of
interpretation is that the courts must give effect to the literal or grammatical meaning of the legislation, and that deviation from
this rule will be allowed only in exceptional circumstances”.
Write an essay of between four (4) and five (5) pages in which you discuss the popularity of the textual approach in legal systems
influenced by English law, the criticisms of the orthodox text-based (literal) approach to statutory interpretation and evaluate
whether the statement at 32D-E in Geyser v Msunduzi Municipality 2003 (5) SA 19 (N) reflects the interpretative trend in South
Africa post 1994.
Special instructions:
(a) Use the following headings to structure your essay:
(1) Introduction (1 mark)
(2) The factors that led to the adoption of the orthodox text-based (literal) approach in England (4 marks)
(3) The criticisms of the orthodox text-based (literal) approach to statutory interpretation (6 marks)
(4) The interpretative approach adopted by South African courts post 1994 (15 marks)
(5) The impact of the Constitution (specifically section 39(2)) on statutory interpretation post 1994; and (20 marks)
(6) Conclusion (4 marks)
Introduction
The orthodox text –based approach was the predominant approach to the interpretation is South Africa prior to 1994.However the
promulgation of the supreme Constitution changed the approach of South African courts to statutory interpretation. In this essay
I argue that the statement made in 32D-E in Geyer v Msunduzi Municipality as it applies to statutory interpretation is correct.
The factors that led to the adoption of the orthodox text –
based approach in England.
According to Botha the orthodox text- based approach was adopted in England due to the following factors which are the
misconception about the doctrine of separation of power and sovereignty of Parliament which resulted in accepting the idea that
the courts function should be limited to the interpretation and applying the will of the legislation.
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,The other factor that played a role in the adoption of the orthodox text- based approach in England is the doctrine of legal
positivism. This doctrine influenced the literal approach in England. The positivist idea is absolutely based on the validity of the
decree, that is command which is decreed by the state is law , as a result the importance of law is to be found in the command
of decree.
In addition to the above factors, England common –law tradition also contributed to the adoption of the orthodox text-based
approach. The courts played a creative role in regard to the common- law principle. Legislation was viewed as the exception to
the rule, altering the traditional common –law.
Moreover, the English legislation which was drafted to be as precise and as detailed in order to avoid legal uncertainty. This
contributed in the adoption of the text –based approach in England.
The criticisms of the orthodox text-based (literal) approach to statutory interpretation
According to Botha the orthodox text-based approach is criticised because the words (their literal) are regarded as the primary
index to legislative meaning. In R v Hildick Smith the court stated that there is only one kind of interpretation with one definite
object and that is to ascertain the true intention of the legislative as expressed in the Act.
Also, the orthodox text-based approach is criticised in the sense that it neglected internal and external aids of interpretation which
are of great significance. These aids could be applied to establish the meaning of text in context. The context of the legislation is
only used if the text is not clear, unless the textual meaning is ambiguous, the interpreter will not have recourse to the wide range
of aids to interpretation at his disposal.
In addition, the orthodox text-based approach is criticised because the normative role of the common-law presumption during
the interpretation process is reduced to the mere last resort to be applied only if the legislative text is ambiguous. Botha states
that very few texts are so clear that only one that only one final interpretation is possible.
Furthermore, the orthodox text –based approach leaves a little room for judicial law – making and the courts are seen as mere
mechanical interpreters of the law. According to the well-known maxims iudicis est ius dicere sed non dare it is the function of
the court to interpret and not to make the law. The orthodox is criticised because the intention of the legislature is ultimately
dependent on how clear the language used in the legislation may be to the particular court.
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, The interpretative approach adopted by South African Courts post 1994.
The interpretative approach adopted by South African courts post -1994 was the purposive (text-in- context) approach. Prior
1994, the purposive approach was applied by the courts from time to time.
In terms of the text- in-context approach, the purpose of the legislation is the most vital factor for interpretation. The context of
the legislation that includes the social, political and policy directions is also taken into account. The mischief rule is the most
important rule of a text –in –approach to interpretation.
The external aids of interpretation must be applied from the beginning of the process of interpretation. The mischief rule
acknowledges the application of the external aids that is the common law prior to the enactment of the legislation, defects in the
law, whatever new solution the legislature provides and the true reason for the remedies. The search for the purpose of legislation
requires a purpose – oriented approach which recognises the contextual framework of the legislation right from the outset and
not only cases where a literal text- based has failed. The text in context approached adopted by courts post 1994 provides a
balance between grammatical and contextual meaning. In order for the interpretation process to be complete, the object and scope
of the legislation must be taken into account.
In Jaga v Donges4, JA Schreiner identified the following guidelines for the interpretation of statutes which are,
Right from the outset the interpreter may take the wider context of provision into consideration with the legislative text in
question.
The relevant contextual factors must be considered irrespective of how clear or unclear the grammatical meaning of the
legislative text is.
In some instances, the wider context may even be more important than the legislative text. -When the meaning of the
text and context is determined, it must be applied, irrespective of whether the interpreter is of the opinion that the
legislature intended something else.
According to the text-in-text approach the courts has inherent – law making discretion when interpreting statutes. The role of the
courts is flexible and is not limited to mere textual analysis and mechanical application of the legislation. However it must be noted
that this discretion is qualified by the prerequisite that modification of the meaning of the text is possible of the legislation is clear
and supports such modification.
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