Summary
Summary Legal Interpretation
- Course
- Legal Interpretation (JJUV)
- Institution
- Nelson Mandela Metropolitan University (NMMU)
Chapter 1-9 includes all notes for first-year legal interpretation. It also includes case law
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Chapter 5 Theoretical FoundationThe general principles of Hermeneutics
● Derived from the Greek word “hermeneuein” which means to interpret
● Lategan defines hermeneutics and the science of understanding, or
more specifically as the theory of the interpretation of texts
● It is the art of understanding the techniques, methods and approaches
used to interpret texts
The Critical Legal Studies movement (CLS)
The Critical Legal Studies movement (CLS) originated in reaction to the
inability of liberalism to solve social problems such as poverty, racism,
pluralism and oppression.
The CLS movement has raised the following criticism of the existing legal
order:
● Within the liberal legal tradition the determination of legal rules is
based on hidden political and ideological considerations. Rules and
principles only change as a result of changes in the political arena.
● The liberal legal tradition is based on individual autonomy, which does
not take communitarianism and community involvement into account.
Existing rights favour the individual.
● With regard to interpretation of statutes in particular, CLS argues that
legal theories and legal reasoning are supported by political
considerations, and the existing political and social balance of power is
consolidated.
Deconstruction
● Reaction against structuralism.
● Structuralism claims the meaning of language can be pinned down from its
grammatical structure; it supports literal interpretation and positivism.
● Deconstruction calls for a person to reconsider and reformulate dominant theories
and opinions about society.
South African Theories of Interpretation
1. Text-Based(literal) approach
★ If plain meaning is clear,that meaning to be applied
★ If the meaning is vague,then the courts may deviate from the literal
meaning to avoid absurdity=Golden Rule
, ★ Courts will turn to secondary aids for interpretation to find the intention
of the legislature
★ If the language is unclear and secondary aids can’t solve the problem,
then common law presumptions is used (tertiary aids)
Critiques of text-based approach:
➢ Equity has little input-Common law presumptions which promote equity
is used as last resort
➢ Literal approach runs contrary to how we ordinary interpret the
meaning of words in any document
➢ Intention of legislature ultimately depend on how clear the words are
➢ No room for judicial law making
➢ Does not align with the influence of the Constitution
2. Text-in-context approach
★ Occasionally used pre-1994, but is now dominant to interpret
★ Fits with Constitutional interpretation
What do Contextualists do when they interpret legislation?
1. Read the legislation
2. Find the purpose of the legislation to help give meaning to the
legislation
a. To help find the purpose,they look at the context of the legislation
b. purpose+context+words=meaning
3. To find the context-both internal and external aids+legislative history +
Constitution is used
4. To find the purpose= the Mischief Rule is used( what was the law before
the statute, what was wrong with the law, how was it resolved?)
Critiques of text-in-context approach
➢ Can only be applied if the text is vague
➢ Courts get confused with the different approaches
➢ Does not focus/look at the intention of legislature
Text-in-context approach advantages:
➢ Flexible=allows judges to develop the law
➢ Aligns with the Mischief Rule
➢ How we actually interpret the meaning of words in everyday context
➢ Permits greater transparency
➢ Similar approach used in most legal systems
Schriener in the Jaga case provided guidelines for text-in-context:
1. Contextual approach to be used from the beginning to gain a wider
view
, 2. Even if the text is clear/ambiguous, the context must be used
3. Wider context can be more important that the legislative text
4. Once the text, context and meaning is clear, it must be applied
irrespective of the interpreters opinion
A shift came in the Natal Joint Municipal Pension Fund v Endumeni
Municipality
The SCA confirmed contextual approach to interpretation
Paragraph 18- “Interpretation is the process of attributing meaning to the words
used in a document, having regard to the context provided. Consideration must be
given to the language used, the context in which the provision appears, the apparent
purpose to which it is directed and the material known to those responsible for its
production.”
Paragraph 20-24- “It is not the goal for the interpreter to find the intention of the
legislator. Instead we use the text of the legislation, the purpose of legislation and its
context to find its meaning.”
The process is objective not subjective
Express purpose clauses and interpretation guidelines
The express purpose clause and interpretation guidelines contain more detail
and are more focused, and should be more valuable during the interpretation
process.
Headings to chapters and sections
● Headings to chapters or sections may be regarded as introductions to
those chapters or sections.
● Within the framework of text-in-context, headings may be used to
determine the purpose of the legislation.
● In the past the courts held the literal viewpoint that headings may be
used by the courts to establish the purpose of the legislation only when
the rest of the provision is not clear (Chotabhai v Union Government
1911 AD 24).
● In Turffontein Estates v Mining Commissioner Johannesburg 1917 AD
419 the court pointed out that the value attached to headings will
depend on the circumstances of each case.
Influence of Constitution
● Constitution prescribes contextual approach
● Mainly s39(2) as read with ss 1, 2, 7, 8, 36, 233 and 237 – all law must be
interpreted within Constitution’s value-laden framework
, Supremacy Clause (Supreme Constitution)
• Section 1 refers to the supremacy of the Constitution and rule of law
• Constitutional Supremacy – supreme law of land, any law/conduct
inconsistent is invalid as obligations must be fulfilled
• Section 2 & 7 obligation clause – Bill of rights is cornerstone of SA democracy
and must be respected, protected and promote the bill of rights
• Section 8(1) Bill of rights – applied to all laws and binds legislature, judiciary &
organs of state
• Section 8(1) Bill of rights – applied to natural and justice persons
• Section 237 – All CC obligation to be performed without delay
• Section 7(4) Sec1 only amended if 75% of member of NA agree + 6 of 9
provinces agree
Bato Star case
• Primary & golden rules of interpretation no longer our law
• Constitution = starting point
• Even if words clear, court must interpret meaning of legislation to give effect
to spirit, purport and objects of Bill of Rights= section 39(2)
“The Constitution is now the supreme law in our country. It is therefore the starting
point in interpreting any legislation. Indeed, every court “must promote the spirit,
purport and objects of the Bill of Rights” when interpreting any legislation. That is the
command of s39(2).
❖ Section 39(2) requires the courts to promote the spirit, purport and objects of
the B of R when interpreting legislation and when developing common law and
customary law
Practical inclusive method of interpretation
Contextualism and constitutionalism
5 Elements
• Not in hierarchical order
• Interpretation not mechanical process - holistic
• Normative – takes into account constitutional values, equity
These are:
• Transformative spirit of Constitution – value-based
• The text itself – language and grammar used
• Structure and context – within legislation as a whole
• Historical context – purpose legislation, history at the time
• Comparative aspects – foreign and international law
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