Interpretation of Statutes IOS2601
STUDY UNIT 1
GENERAL INTRODUCTION
, -1-
1. WHAT IS INTERPRETATION OF STATUES?
Definition: Statutory Interpretation (juridical understanding of legislation)
Statutory interpretation deals with the body of rules and principles used to construct and justify the
meaning of legislative provisions to be applied in practical situations.
Du Plessis explains it as follows:
Statutory (and constitutional) interpretation is about construing exacted law-texts with reference to and
reliance on other law-texts, concretising the text to be construed so as to cater for the exigencies of an
actual or hypothesised concrete situation.
Interpretation of legislation requires more than reading provisions → It’s not a mechanical process
One cannot understand a legal text merely by concentrating on its language
→ You must also understand how law works & what it seeks to achieve in order to understand
how it communicates with you and what it wants to tell you. (Du Plessis)
Corocraft Ltd v American Airways Inc:
Donaldson in explaining interpretation of legislation:
→ Judges = not computers into which statutes & rules for its construction is fed
→ “Statutory interpretation is a craft rather than a science”
Reasons why the interpretation of statutes is not a rule-like activity:
Interpretation is not mechanical process: multifaceted (complex), rules overlap & cannot be
compartmentalized:
• The circumstances & sets of facts will differ from case to case, as well as the context of
legislation
• Courts are not of one mind when applying principles→ interpretation has no clear, predictable
pattern of application.
• The law is not objective, neutral and value-free: All interpreters have particular personal
attributes which influence their understanding of legislation.
→ These attributes are as a result of the interpreter’s history, background, experiences
and prejudices
• Since the spirit & purport of the bill of rights must be promoted during the interpretation of all
legislation, the interpreters must of necessity involve value judgments.
• Other external factors (e.g. dictionaries or commission reports) may be used to establish the
meaning of the legislation. Sometimes the interpreter will be confronted by the results of poor
drafting, conflicting provisions or a lack of resources to research the current law.
Interpretation is not a mechanical exercise during which predetermined formulae, well-known
maxims and careful reading will reveal the meaning of the legislative provision
• Technical aspects of the structure and language of legislation must be applied together with
substantive aspects of the constitutional values and fundamental rights.
[Study Unit 1 IOS 2601 INTRODUCTION]
, -2-
• The interpreter has to keep other interrelated issues in mind apart from difficulties of language
and meaning. Is it in force, amended, provisions, regulations, conflicting law etc
• Read, understand and apply the provision within the framework of the supreme constitution
and the bill of rights.
2 THE NEW CONSTITUTIONAL ORDER:
Before 1994 and the Constitution, interpretation of statutes was an orthodox system of maxims and
rules for interpretation based on parliamentary sovereignty.
• The old system was saddled with maxims and canons of interpretation all unnecessary and
unacceptable!
• Today interpretation (a fundamental-rights dispensation) is based on constitutional supremacy
and the spirit & purport of fundamental rights are to be taken into account → thus value
judgment can no longer be ignored.
(In the new constitutional dispensation, value judgments have to be made in interpretation of
statutes, since the courts must consider the spirit and purport of the fundamental rights while
making statutory interpretation as prescribed by the interpretation clause of the supreme
constitution.)
According to Devenish:
The need for a new method of statutory interpretation in a constitutional democracy:
• courts will be able to test and invalidate legislation;
• all statute law will have to be interpreted to be compatible with letter and spirit of Constitution;
• a value-coherent theory of interpretation should become prevalent;
• a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation.
He expressed this need as follows:
“The constitutional doctrine of parliamentary sovereignty, the jurisprudence of positivism, and the
political hegemony of Afrikaner Nationalism have greatly influenced the methodology and theory of
interpretation in South Africa. Steyn'S advocacy of the subjective or intention theory of interpretation
facilitated a sympathetic interpretation of apartheid and draconian security legislation. . . The demise
of the apartheid state and the emergence of a new political and legal order involving a
negotiated and legitimate constitution with an entrenched and justiciable bill of rights must of
necessity influence the process and theory of interpretation. In effect, the introduction of a
justiciable bill of rights is likely to herald a new methodology and theory of Interpretation of
statutes.”
On 4 February 1997 the 1996 Constitution came into operation.
• Those principles of the interim Constitution which transformed statutory interpretation
were retained in the 1996 Constitution.
[Study Unit 1 IOS 2601 INTRODUCTION]
, -3-
Clauses in the supreme constitution that influence interpretation
Apart from the constitutional values, the interpretation of statutes was transformed by six provisions of
the Constitution → in particular:
Factors which have influenced the shift in the mode of statutory interpretation are: -
1. Supremacy of the Constitution
2. Human Rights as considered in the Bill of Rights provision
3. Constitutionalism & fundamental values.
3. DEFINITIONS
Act:
Refers to legislation: either a parliamentary / provincial statute.
• “act” = conduct of a government organ.
Concretisation:
Final phase of the interpretation process.
• The text, purpose and situation are harmonised.
Constitutionalism:
Refers to government in accordance with the Constitution → government derives its powers from and
is bound by the Constitution.
• State where the Law is supreme→ government & state authorities = bound by the rule of law.
Constitutional state (Rechtsstaat):
State in which constitutionalism prevails → Country where the constitution is supreme.
→ A constitutional state is underpinned by two foundations:
• A formal one: includes separation of powers, checks and balances, legality.
• A material one: refers to a state underpinned by fundamental values: justice, equality.
- The preamble of 1993 Constitution expressly referred to SA as a constitutional state.
Context:
The circumstances surrounding something / the situation in which something happens.
Contextualisation:
Process during which legislative text is read, researched within its total context to obtain its purpose.
Entrenched:
Provisions in a Constitution which can only be altered / amended / repealed with difficulty
(IE: rigid or inflexible provisions.)
• Legislation: usually changed by simple majority vote in legislature
(50%+ 1 of members present)
[Study Unit 1 IOS 2601 INTRODUCTION]
STUDY UNIT 1
GENERAL INTRODUCTION
, -1-
1. WHAT IS INTERPRETATION OF STATUES?
Definition: Statutory Interpretation (juridical understanding of legislation)
Statutory interpretation deals with the body of rules and principles used to construct and justify the
meaning of legislative provisions to be applied in practical situations.
Du Plessis explains it as follows:
Statutory (and constitutional) interpretation is about construing exacted law-texts with reference to and
reliance on other law-texts, concretising the text to be construed so as to cater for the exigencies of an
actual or hypothesised concrete situation.
Interpretation of legislation requires more than reading provisions → It’s not a mechanical process
One cannot understand a legal text merely by concentrating on its language
→ You must also understand how law works & what it seeks to achieve in order to understand
how it communicates with you and what it wants to tell you. (Du Plessis)
Corocraft Ltd v American Airways Inc:
Donaldson in explaining interpretation of legislation:
→ Judges = not computers into which statutes & rules for its construction is fed
→ “Statutory interpretation is a craft rather than a science”
Reasons why the interpretation of statutes is not a rule-like activity:
Interpretation is not mechanical process: multifaceted (complex), rules overlap & cannot be
compartmentalized:
• The circumstances & sets of facts will differ from case to case, as well as the context of
legislation
• Courts are not of one mind when applying principles→ interpretation has no clear, predictable
pattern of application.
• The law is not objective, neutral and value-free: All interpreters have particular personal
attributes which influence their understanding of legislation.
→ These attributes are as a result of the interpreter’s history, background, experiences
and prejudices
• Since the spirit & purport of the bill of rights must be promoted during the interpretation of all
legislation, the interpreters must of necessity involve value judgments.
• Other external factors (e.g. dictionaries or commission reports) may be used to establish the
meaning of the legislation. Sometimes the interpreter will be confronted by the results of poor
drafting, conflicting provisions or a lack of resources to research the current law.
Interpretation is not a mechanical exercise during which predetermined formulae, well-known
maxims and careful reading will reveal the meaning of the legislative provision
• Technical aspects of the structure and language of legislation must be applied together with
substantive aspects of the constitutional values and fundamental rights.
[Study Unit 1 IOS 2601 INTRODUCTION]
, -2-
• The interpreter has to keep other interrelated issues in mind apart from difficulties of language
and meaning. Is it in force, amended, provisions, regulations, conflicting law etc
• Read, understand and apply the provision within the framework of the supreme constitution
and the bill of rights.
2 THE NEW CONSTITUTIONAL ORDER:
Before 1994 and the Constitution, interpretation of statutes was an orthodox system of maxims and
rules for interpretation based on parliamentary sovereignty.
• The old system was saddled with maxims and canons of interpretation all unnecessary and
unacceptable!
• Today interpretation (a fundamental-rights dispensation) is based on constitutional supremacy
and the spirit & purport of fundamental rights are to be taken into account → thus value
judgment can no longer be ignored.
(In the new constitutional dispensation, value judgments have to be made in interpretation of
statutes, since the courts must consider the spirit and purport of the fundamental rights while
making statutory interpretation as prescribed by the interpretation clause of the supreme
constitution.)
According to Devenish:
The need for a new method of statutory interpretation in a constitutional democracy:
• courts will be able to test and invalidate legislation;
• all statute law will have to be interpreted to be compatible with letter and spirit of Constitution;
• a value-coherent theory of interpretation should become prevalent;
• a justiciable bill of rights is likely to indicate a new methodology and theory of interpretation.
He expressed this need as follows:
“The constitutional doctrine of parliamentary sovereignty, the jurisprudence of positivism, and the
political hegemony of Afrikaner Nationalism have greatly influenced the methodology and theory of
interpretation in South Africa. Steyn'S advocacy of the subjective or intention theory of interpretation
facilitated a sympathetic interpretation of apartheid and draconian security legislation. . . The demise
of the apartheid state and the emergence of a new political and legal order involving a
negotiated and legitimate constitution with an entrenched and justiciable bill of rights must of
necessity influence the process and theory of interpretation. In effect, the introduction of a
justiciable bill of rights is likely to herald a new methodology and theory of Interpretation of
statutes.”
On 4 February 1997 the 1996 Constitution came into operation.
• Those principles of the interim Constitution which transformed statutory interpretation
were retained in the 1996 Constitution.
[Study Unit 1 IOS 2601 INTRODUCTION]
, -3-
Clauses in the supreme constitution that influence interpretation
Apart from the constitutional values, the interpretation of statutes was transformed by six provisions of
the Constitution → in particular:
Factors which have influenced the shift in the mode of statutory interpretation are: -
1. Supremacy of the Constitution
2. Human Rights as considered in the Bill of Rights provision
3. Constitutionalism & fundamental values.
3. DEFINITIONS
Act:
Refers to legislation: either a parliamentary / provincial statute.
• “act” = conduct of a government organ.
Concretisation:
Final phase of the interpretation process.
• The text, purpose and situation are harmonised.
Constitutionalism:
Refers to government in accordance with the Constitution → government derives its powers from and
is bound by the Constitution.
• State where the Law is supreme→ government & state authorities = bound by the rule of law.
Constitutional state (Rechtsstaat):
State in which constitutionalism prevails → Country where the constitution is supreme.
→ A constitutional state is underpinned by two foundations:
• A formal one: includes separation of powers, checks and balances, legality.
• A material one: refers to a state underpinned by fundamental values: justice, equality.
- The preamble of 1993 Constitution expressly referred to SA as a constitutional state.
Context:
The circumstances surrounding something / the situation in which something happens.
Contextualisation:
Process during which legislative text is read, researched within its total context to obtain its purpose.
Entrenched:
Provisions in a Constitution which can only be altered / amended / repealed with difficulty
(IE: rigid or inflexible provisions.)
• Legislation: usually changed by simple majority vote in legislature
(50%+ 1 of members present)
[Study Unit 1 IOS 2601 INTRODUCTION]
