lOMoARcPSD|3471720
INTERPRETATION OF STATUTES
SECTION A – GENERAL INTRODUCTION
CHAPTER 1 – GENERAL INTRODUCTION
Interpretation of statutes is about making sense of the total relevant legislative scheme applicable to the
situation at hand
Definition of interpretation of statutes by Botha:
The body of rules & principles used to construct the correct meaning of legislative provisions to be
applied in practical situations
Statutes cannot be interpreted in a mechanical / rule-like fashion –
• Many rules of interpretation (aka: maxims / canons / presumptions of interpretation) overlap &
cannot be neatly compartmentalised
• “Legalese” – language used in legislation is often difficult & obscure
• Circumstances & contexts in which legislation must be applied differ
• Courts have not developed clear & predictable pattern of application for certain rules
• All interpreters are influenced by their own history & background
• Interpretation involves value judgments
Interpreter has to determine what the legislation has to accomplish in the legal order – case law & older
sources refer to this as the “intention of the legislature” – other sources refer to it as “purpose of the
legislation” / “legislative scheme” - However, it’s difficult to picture such a collective intention exercised by
all members of a legislative body because:
• Legislature is composed of a number of persons – all of whom take part in the legislative process;
• As part of the democratic legislative process some members of the legislature may oppose the
legislation for various reasons, with the result that the adopted legislation ultimately reflects the
“intention” of only the majority of the legislature;
• Some members will support legislations for the sake of party unity – though they may personally be
opposed to a Bill = “intention” of legislature is subject to what the individual members of legislative
body, under pressure from their party assembly, “had to” intend
• Parliamentarians are elected politicians – they do not necessarily understand the complex &
technical legislation which they adopt;
• A Bill introduced in the legislature is not drafted by the public representatives, but by legislative
drafters & law advisers acting on advice of officials from various state departments; and
• Some members of legislative body may even be absent when voting on draft legislation takes place
The correct interpretation of legislation does not depend on which term is used – but more importantly,
how the purpose (or intention / legislative scheme / aim of legislation) is ascertained & construed
Botha refers to “correct” answers – however if the rules & principles of statutory interpretation are as
complex & results of interpretation as unpredictable & from Botha’s own account of the non-mechanical
nature of the interpretative process – UNISA has a better definition =
The body of rules & principles that are used to construct & justify the meaning of legislative
provisions when they are applied in practical situations
, lOMoARcPSD|3471720
THE NEW CONSTITUTIONAL ORDER
Before 1994 Interim Const – interpretation of statutes was based on sovereignty of Parliament –
• Parliament as highest legislative body AND was capable of enacting any laws it wished
• No court could test substance of parliamentary Acts against standards like fairness / equality
Characteristics of statutory interpretation before 1994 interim constitution:
1. There was a confusing system of maxims & canons (standards / rules) of interpretation;
2. It was saddled with the so-called primary, secondary & tertiary rules;
3. There were misconceptions about structure & meaning of language; and
4. There were differences of opinion as to how the so-called intention of the legislature should be
ascertained
After introduction of 1994 Interim Const –
• Principle of parliamentary sovereignty was replaced by constitutional supremacy
• Interpretation clause stated that the spirit & purport of fundamental rights had to be taken into
account during interpretation of statutes – courts can no longer ignore value judgments
• Rules of statutory interpretation were influenced by new constitutional order
• Critical questions asked by academics were no longer theoretical reflections
• Correct method of statutory & constitutional interpretation formed the centre of debate about the
protection of fundamental human rights
After introduction of 1997 Const –
Principles of interim const which transformed statutory interpretation were
retained Interpretation of statutes was transformed by the following 6 provisions:
1. S1 – the foundational provision;
2. S2 – supremacy clause;
3. S7 – obligation clause
4. S8 – application clause
5. S36 – limitation clause
6. S39 – interpretation clause
PROCESS OF INTERPRETATION: A TEACHING TOOL
Dual nature of statutory interpretation = a body of law AND a practical activity
“Statutory interpretation” means distinguishing btw:
1. Process / activity of interpreting statutes on the one hand; and
2. The law (body of rules & principles) that regulates that process on the other
The legal rules & principles cannot, by themselves, say anything about the activity / process of
interpretation
More is involved in the process than mere knowledge of the rule book
(i.e. same distinction applies to activity of cooking a meal – the process of cooking can & must be
distinguished from the study of recipe books (i.e rule books on cooking) – a good cook not only knows many
good recipes – she also knows how to cook)
, lOMoARcPSD|3471720
Botha divides the process / activity of interpreting legislation into 3 phases:
1. Initial phase:
Text of legislation is read to discover its initial meaning – bearing in mind the CL presumptions & a
balance btw the text & the context of the particular legislation
Foll basic principles are used as a point of departure:
• Supreme Const in general and the BOR in particular are the cornerstones of legal order
• Most NB principle of statutory interpretation = to ascertain the purpose of the legislation &
apply it in the light of the BOR
2. Research phase:
Purpose of legislation is determined by studying all the factors & considerations that may have a
bearing on the particular legislation:
• The legislative text;
• Interpretation Act;
• CL presumptions;
• Aids outside the legislative text; and
• Other contextual factors
3. Concretisation phase:
Legislative text, purpose of legislation & facts of case are harmonised to bring the process to a just,
purposive & meaningful end within the framework of the purpose of the legislation
Spirit, purport & aim of the fundamental rights in Const must be promoted
SECTION B – THE LEGISLATIVE PROCESS
CHAPTER 2 – WHAT IS LEGISLATION?
1 of the 3 formal sources of law in SA (the other 2 are judicial precedent & custom) - Excludes CL
Note: the importance of distinguishing btw legislation & other types of law lies in the fact that rules &
principles of interpretation apply on to the interpretation of legislation
• Botha explains legislation (aka “statute law”) as: Written law enacted by a body / person
authorised to do so by the Const / other legislation
• Du Plessis refers to legislation as: “Enacted law-text”
“Enacted” : adopted/issued/promulgated ito prescribed legal requirements
“Law” : has the force of law
“Text” : written law
• According to Interpretation Act (ss1 and 2 read together) legislation consists of:
o Any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or
orders; and
o Any other enactment having the force of the law
• According to the Const, the legislative menu consists of the following:
INTERPRETATION OF STATUTES
SECTION A – GENERAL INTRODUCTION
CHAPTER 1 – GENERAL INTRODUCTION
Interpretation of statutes is about making sense of the total relevant legislative scheme applicable to the
situation at hand
Definition of interpretation of statutes by Botha:
The body of rules & principles used to construct the correct meaning of legislative provisions to be
applied in practical situations
Statutes cannot be interpreted in a mechanical / rule-like fashion –
• Many rules of interpretation (aka: maxims / canons / presumptions of interpretation) overlap &
cannot be neatly compartmentalised
• “Legalese” – language used in legislation is often difficult & obscure
• Circumstances & contexts in which legislation must be applied differ
• Courts have not developed clear & predictable pattern of application for certain rules
• All interpreters are influenced by their own history & background
• Interpretation involves value judgments
Interpreter has to determine what the legislation has to accomplish in the legal order – case law & older
sources refer to this as the “intention of the legislature” – other sources refer to it as “purpose of the
legislation” / “legislative scheme” - However, it’s difficult to picture such a collective intention exercised by
all members of a legislative body because:
• Legislature is composed of a number of persons – all of whom take part in the legislative process;
• As part of the democratic legislative process some members of the legislature may oppose the
legislation for various reasons, with the result that the adopted legislation ultimately reflects the
“intention” of only the majority of the legislature;
• Some members will support legislations for the sake of party unity – though they may personally be
opposed to a Bill = “intention” of legislature is subject to what the individual members of legislative
body, under pressure from their party assembly, “had to” intend
• Parliamentarians are elected politicians – they do not necessarily understand the complex &
technical legislation which they adopt;
• A Bill introduced in the legislature is not drafted by the public representatives, but by legislative
drafters & law advisers acting on advice of officials from various state departments; and
• Some members of legislative body may even be absent when voting on draft legislation takes place
The correct interpretation of legislation does not depend on which term is used – but more importantly,
how the purpose (or intention / legislative scheme / aim of legislation) is ascertained & construed
Botha refers to “correct” answers – however if the rules & principles of statutory interpretation are as
complex & results of interpretation as unpredictable & from Botha’s own account of the non-mechanical
nature of the interpretative process – UNISA has a better definition =
The body of rules & principles that are used to construct & justify the meaning of legislative
provisions when they are applied in practical situations
, lOMoARcPSD|3471720
THE NEW CONSTITUTIONAL ORDER
Before 1994 Interim Const – interpretation of statutes was based on sovereignty of Parliament –
• Parliament as highest legislative body AND was capable of enacting any laws it wished
• No court could test substance of parliamentary Acts against standards like fairness / equality
Characteristics of statutory interpretation before 1994 interim constitution:
1. There was a confusing system of maxims & canons (standards / rules) of interpretation;
2. It was saddled with the so-called primary, secondary & tertiary rules;
3. There were misconceptions about structure & meaning of language; and
4. There were differences of opinion as to how the so-called intention of the legislature should be
ascertained
After introduction of 1994 Interim Const –
• Principle of parliamentary sovereignty was replaced by constitutional supremacy
• Interpretation clause stated that the spirit & purport of fundamental rights had to be taken into
account during interpretation of statutes – courts can no longer ignore value judgments
• Rules of statutory interpretation were influenced by new constitutional order
• Critical questions asked by academics were no longer theoretical reflections
• Correct method of statutory & constitutional interpretation formed the centre of debate about the
protection of fundamental human rights
After introduction of 1997 Const –
Principles of interim const which transformed statutory interpretation were
retained Interpretation of statutes was transformed by the following 6 provisions:
1. S1 – the foundational provision;
2. S2 – supremacy clause;
3. S7 – obligation clause
4. S8 – application clause
5. S36 – limitation clause
6. S39 – interpretation clause
PROCESS OF INTERPRETATION: A TEACHING TOOL
Dual nature of statutory interpretation = a body of law AND a practical activity
“Statutory interpretation” means distinguishing btw:
1. Process / activity of interpreting statutes on the one hand; and
2. The law (body of rules & principles) that regulates that process on the other
The legal rules & principles cannot, by themselves, say anything about the activity / process of
interpretation
More is involved in the process than mere knowledge of the rule book
(i.e. same distinction applies to activity of cooking a meal – the process of cooking can & must be
distinguished from the study of recipe books (i.e rule books on cooking) – a good cook not only knows many
good recipes – she also knows how to cook)
, lOMoARcPSD|3471720
Botha divides the process / activity of interpreting legislation into 3 phases:
1. Initial phase:
Text of legislation is read to discover its initial meaning – bearing in mind the CL presumptions & a
balance btw the text & the context of the particular legislation
Foll basic principles are used as a point of departure:
• Supreme Const in general and the BOR in particular are the cornerstones of legal order
• Most NB principle of statutory interpretation = to ascertain the purpose of the legislation &
apply it in the light of the BOR
2. Research phase:
Purpose of legislation is determined by studying all the factors & considerations that may have a
bearing on the particular legislation:
• The legislative text;
• Interpretation Act;
• CL presumptions;
• Aids outside the legislative text; and
• Other contextual factors
3. Concretisation phase:
Legislative text, purpose of legislation & facts of case are harmonised to bring the process to a just,
purposive & meaningful end within the framework of the purpose of the legislation
Spirit, purport & aim of the fundamental rights in Const must be promoted
SECTION B – THE LEGISLATIVE PROCESS
CHAPTER 2 – WHAT IS LEGISLATION?
1 of the 3 formal sources of law in SA (the other 2 are judicial precedent & custom) - Excludes CL
Note: the importance of distinguishing btw legislation & other types of law lies in the fact that rules &
principles of interpretation apply on to the interpretation of legislation
• Botha explains legislation (aka “statute law”) as: Written law enacted by a body / person
authorised to do so by the Const / other legislation
• Du Plessis refers to legislation as: “Enacted law-text”
“Enacted” : adopted/issued/promulgated ito prescribed legal requirements
“Law” : has the force of law
“Text” : written law
• According to Interpretation Act (ss1 and 2 read together) legislation consists of:
o Any law, proclamation, ordinance, Act of Parliament, all by-laws, rules, regulations or
orders; and
o Any other enactment having the force of the law
• According to the Const, the legislative menu consists of the following:
