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HOWARD SOBANTU NDAMANE.

STUDENT NUMBER 54849764.


ADVANCED CONSTITUTIONAL LAW &
HUMANRIGHTS LAW ( LCP 4806).
DATE OF SUBMISSION 11 SEPTEMBER 2015.

QUESTION 1
Statutory Interpretation in the light of the contextual approach or the purposive approach has
played an integral part in relation to contribution to constitutional interpretation.1 Contextual
means pieces of writing that contribute to the principal thing which in issue is the constitution.2
In the case of Jaga v Donges 1950 (4) SA 653 (A)3 it was held that the courts have been more
prepared to interpret the text of legislation in the wider contextual approach.4 In Mjuqu v
Johannesburg City Council 1973 3 SA 421 (A). Schreiner JA held that the process of changing
proved slow, with progression altering with regression.5 In relation to constitutional cases Kalla
v The Master 1995 1 SA 261 (T) 269 C-G the court held that the traditional rules of statutory
interpretation still form part of the law of the land and that they have been affected by the 1996
Constitution. Consequently, the orthodox plain meaning rule was applied: if the text is
ambiguous, the traditional rules of interpretation of statutes may be applied to find the intention
of the legislature.6 The courts have adapted well to the contextual approach of statutory
interpretation as illustrated by Foreman J in Matiso v Commanding officer, Port Elizabeth Prison
1994 SA 592 (SE) 597F,7 it was held that the notion of ascertaining the intention of the
legislature does not apply in a system of judicial review based on the supremacy of the
constitution, for the simple reason that the constitution is sovereign and not the legislature.8 This
means that both the purpose and method of statutory interpretation should be different from what
it was before the commencement of the constitution on 27 April 1994.9 The 1996 Constitution
together with its predecessor brought about fundamental changes in the approach to statutory
interpretation therefore for the first time in the history of South Africa we have a supreme
1 Botha Statutory Interpretation 2nd Edition (1996) 35.
2 Collins Harper Collins English Dictionary and Thesaurus (1995).
31950 (4) SA 653 (A).
4Botha Statutory Interpretation 2nd Edition (1996) 35.
5 (Ibid).
6 Botha Statutory Intepretation 2nd Edition (1996) 37.
7 1994 SA 592 (SE) 597F.
8 Botha Statutory Interpretation 2nd Edition (1996) 36.
9 (Ibid).

constitution, sovereignty of parliament has been replaced by constitutional supremacy.10 Section


4 reads as follows
(1) This Constitution shall be the supreme law of the republic and any law or act inconsistent
with its provisions shall, unless otherwise provided expressly or by necessary implication
in its Constitution, be of no force and effect to the extent of the inconsistency.11
(2) This Constitution shall bind all legislative, executive and judicial organs of state at all
levels of government.12 Section 35 (3) of the Constitution deals with statutory
interpretation in general and provided that in the interpretation of any law and the
application and the development of the common law and customary law , a court of law
shall have due regard to the spirit, purport and objects thereof.13 The courts must review
the aim and purpose of legislation in the light of Chapter 3 is a peremptory provision
which enumerates fundamental human rights law.14 Section 35(1) of the constitution
provides the following with regards to chapter 3 in interpreting the provisions of this
chapter a court of law shall promote the values which underline an open and democratic
society based on freedom and equality and shall, where applicable, have regard to
comparable foreign case law.15 Section 103 (3) of the constitution provides that if a party
before a court of law alleges that the legislation in question is in conflict with the
constitution, and the presiding officer is of the opinion that the interests of justice.16 The
case may be postponed to enable the matter to be referred to the provincial or local
division of the Supreme Court and the Constitutional for a reason regarding the validity
of the legislation in question.17 This means that all courts have to engage in constitutional
interpretation since the spirit and the object of Chapter 3 must be taken into account
during the interpretation of all legislation, as well as the development of common and
10 Botha Statutory Interpretation 2nd Edition (1996) 37.
11 (Ibid).
12 (Ibid).
13 Botha Statutory Interpretation 2nd Edition (1996) 38.
14(Ibid).
15(Ibid).
16 Botha Statutory Interpretation 2nd Edition (1996) 40.
17 (Ibid).

customary law.18 Cowen (1980 : 369) emphasizes that the interpretation must be
reconcilable with the purpose of the legislation, even when the words of the particular
measure may seem to have only one unambiguous meaning.19 It must be understood that
this principle is now qualified and extended the 1996 constitution as the most important
purpose of legislation in the light of the bill of rights and everything in relation to the
scope must be line in light of the supreme constitution.20 In Union Government v Mack21
what was a normal principle of language was elevated to the literal rule or primary rule of
interpretation.22 In Volschenk v Volschenk 1946 TPD 486, it was decided that the most
important rule of interpretation was to give words their ordinary, literal meaning.23 In
Sigcau v Sigcau 1941 CPD 334, it was decided that the term ordinary meaning could be
held to include the ordinary grammatical meaning.24 In Association of Amusement and
Novelty Machine Operators v Minister of Justice 1980 2 SA 636 (A)25, the court held that
this unity of reading legislation will agree that it does not contain the colloquial speech of
the ordinary person in the street.26 It cannot be emphasized enough that the ordinary
principle that the ordinary meaning should be attached to the words of legislation is only
the starting point of the interpretation process including all the process of legislation
including all the factors inside and outside the text which could qualify the initial
meaning of the provision of the first meaning should be taken into account from the
onset.27 In the case of technical legislation words that have a technical meaning in that
field, which is different from the ordinary, colloquial meaning, must be taken to denote
18 (Ibid).
19 Botha Statutory Interpretation 2nd Edition (1996) 43.
20 Botha Statutory Interpretation 2nd Edition (1996) 44.
21
22 (ibid).
231946 TPD.

24 1941 CPD 334.


251980 2 SA 636 (A).
26 Botha Statutory Interpretation 2nd Edition (1996) 45.

the specialized technical meaning (Kommissaris van Doeane en Aksyns v Mincer Motors
1959 1 SA 114 (A).28 The principle that a meaning must be assigned to every word derives
from the rule that words are to be understood according to their ordinary meaning.29 This
applies when the text is read and legislation should be interpreted in such a way that
legislation should not be interpreted in such a way that no legislation is regarded as
redundant or superfluous.30 In Keyter v Minister of Agriculture 1908 NLR 522, it was
pointed out that the courts function is to give effect to every word, unless it however, a
court will not easily decide that words contained in legislation are superfluous
(Commissioner of Agriculture 1908 NLR 522.31 In practice however a court will not easily
decide that words contained in legislation are superfluous (Commissioner for Inland
Revenue v Golden Dumps (Pty) Ltd 1993 4 SA 110 (A).32

27 (Ibid).
28 1959 1 SA 114 (A).
29 Botha Statutory Interpretation 2nd Edition (1996) 45.
30 (Ibid).
31 (Ibid).
32 (Ibid).