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Part 2: How Legislation is Interpreted
Ch.5 - Theories of Interpretation
SA THEORIES OF INTERPETATION:
The theories and approaches to interpretation can be condensed into 2 main approaches:
1. Orthodox text- based (literal) approach
Adherence to ‘ordinary’ meaning of words
Language can accurately reflect legislative intent
Only if plain meaning is ambiguous or leads to absurdity that one can rely on secondary and tertiary
aids to interpretation to establish purpose
Interpreter should focus on literal meaning of the provision and the process should proceed as
follows:
Interpretation process
If the plain meaning of the text is clear, it should be applied
If plain meaning is ambiguous, vague or misleading or direct literal translation would result in
absurd results- court may deviate from meaning to avoid absurdity ‘Golden Rule’. Court
then can use secondary aids to find intention of legislature- Long title, headings of chaps and
sections, the text in other official languages, etc.
When secondary aids can’t find intention of legislation- use tertiary aids to construction-
common-law presumptions of interpretation
Misconceptions about the doctrines of the separation of powers + Parliamentary sovereignty
(the will of Parliament is expressed in the legislation) resulted in acceptance of the idea that
the court’s function should be limited to the interpretation and application of the will of the
legislature
Legal positivism (the essence of the law is in the decree)– the role of the court is limited to the
analysis of the law and should not be a speculation about what the law ought to be
This approach stems from our English colonial backgrounds
Predominant approach in SA prior 1994- still applied, despite criticism + CC jurisprudence
that rejects it
Criticisms of this method
Common law presumptions are reduced to a last resort by this method of interpretation (only if
text is ambiguous)
The literal meaning of words is regarded as the primary index to legislative meaning
Other external and internal aids to interpretation which are used to establish text-in-context are
not used. Only if the meaning of word is vague is the context of the legislation used. Unless
, 2
the textual meaning is unclear or ambiguous, interpreter doesn’t have wide range of
interpretation tools at disposal aids to interpretation can and should be used even if the text
is clear
‘intention of legislation’ is dependent on how clear the language is to the particular court that
day (not consistent-unaligned with rule of law)
Very few texts are clear enough that only one interpretation is derived
Little room for judicial discretion, so power in hands of legislature∴ power in hands of
legislature
2. Text- in context approach
The purpose or object of the legislation (legislative scheme) is the prevailing factor in interpretation.
The context of the legislation (social and political policy directions) is also taken into account to
identify the purpose of the legislation
Can only determine meaning of provisions in relation to the aims of the legislation concerned
Can use aids to interpretation from the start, not only when the plain meaning is ambiguous or
leads to absurdity
Where there is conflict between the plain meaning of the words used in a provision and the
purpose of that legislation, the meaning most consistent with the purpose is to be preferred
Context- based approach in which the purpose behind the legislation is principal determinant of its
meaning
If literal meaning + purpose conflict- meaning consistent with the purpose should prevail
Allows reliance on secondary + tertiary aids to interpretation from the outset
Mischief Rule: acknowledges the use of external aids- common law prior to enactment of legislation,
defects in the law, new remedies (solutions) and the true reasons for the remedies
The search for the purpose of legislation needs a purpose-orientated approach which recognises the
context of the legislation (i.e. the environment it was enacted in), and not only when the literal, text-
based approach has failed.
Provides a balance between grammatical + overall contextual meaning
Contextual environment (object + scope of legislation) must be taken into account
According to the text- in- context approach, the judiciary has inherent law making discretion during
interpretation→ courts may modify or adapt initial meaning of the text to align it with the purpose
Role of courts is more flexible
Such a law making function of the judiciary is not an infringement of the legislature’s
function- it is a logical extension of the powers of the courts
Eg. Jaga v Donges1950 (4) SA 653 (A)
, 3
Issue: Could two men, born in India, be deported from SA because of their conviction in SA and
receipt of a suspended sentence of imprisonment? [Legislation provided for deportation of people
not born in SA who had been sentenced to imprisonment]
Question: Did suspended sentence = ‘sentenced to imprisonment’
Majority: Yes- legislature uses ‘sentenced to imprisonment’ to exclude other forms of
punishment such as fines + whippings
Minority:In his minority decision, Schreiner JA set out the following interpretation guidelines:
From the beginning, the interpreter may take the wider context of provision (purpose and
range) into consideration
Irrespective of how clear or unambiguous the grammatical meaning of the legislation seems to
be, the relevant contextual factors (e.g. practical effects of diff interp, background of
provision) of the legislation MUST be considered
The wider context can sometimes be more important than the actual legislative text
Once the meaning of the text and context (language in context) is determined, it must be
applied, irrespective of whether the interpreter thinks the legislature intended something else.
First concrete effort to use text-in-context based approach in SA
Key Features of the Text in Context Approach
Provides a balance between grammatical and overall contextual meaning. Hence the object and scope
of the legislation (i.e., its contextual environment) is taken into account during the statutory
interpretation process.
Recognises that the judiciary has an inherent law-making discretion during statutory interpretation.
Courts may modify or adapt the initial meaning of the text to harmonise it with the purpose of the
legislation.
The role of the court is not limited to mere textual analysis and mechanical application of the
legislation.
The use of common law presumptions, as well as all the various aids to interpretation are important
tools in determining the scope and purpose of legislation.
Criticisms of this method
If the purpose of the legislation is evil, then a purposive interpretation will give effect to that evil
Multiple contending purposes create issues
Where do we find the “purpose”?
Part 2: How Legislation is Interpreted
Ch.5 - Theories of Interpretation
SA THEORIES OF INTERPETATION:
The theories and approaches to interpretation can be condensed into 2 main approaches:
1. Orthodox text- based (literal) approach
Adherence to ‘ordinary’ meaning of words
Language can accurately reflect legislative intent
Only if plain meaning is ambiguous or leads to absurdity that one can rely on secondary and tertiary
aids to interpretation to establish purpose
Interpreter should focus on literal meaning of the provision and the process should proceed as
follows:
Interpretation process
If the plain meaning of the text is clear, it should be applied
If plain meaning is ambiguous, vague or misleading or direct literal translation would result in
absurd results- court may deviate from meaning to avoid absurdity ‘Golden Rule’. Court
then can use secondary aids to find intention of legislature- Long title, headings of chaps and
sections, the text in other official languages, etc.
When secondary aids can’t find intention of legislation- use tertiary aids to construction-
common-law presumptions of interpretation
Misconceptions about the doctrines of the separation of powers + Parliamentary sovereignty
(the will of Parliament is expressed in the legislation) resulted in acceptance of the idea that
the court’s function should be limited to the interpretation and application of the will of the
legislature
Legal positivism (the essence of the law is in the decree)– the role of the court is limited to the
analysis of the law and should not be a speculation about what the law ought to be
This approach stems from our English colonial backgrounds
Predominant approach in SA prior 1994- still applied, despite criticism + CC jurisprudence
that rejects it
Criticisms of this method
Common law presumptions are reduced to a last resort by this method of interpretation (only if
text is ambiguous)
The literal meaning of words is regarded as the primary index to legislative meaning
Other external and internal aids to interpretation which are used to establish text-in-context are
not used. Only if the meaning of word is vague is the context of the legislation used. Unless
, 2
the textual meaning is unclear or ambiguous, interpreter doesn’t have wide range of
interpretation tools at disposal aids to interpretation can and should be used even if the text
is clear
‘intention of legislation’ is dependent on how clear the language is to the particular court that
day (not consistent-unaligned with rule of law)
Very few texts are clear enough that only one interpretation is derived
Little room for judicial discretion, so power in hands of legislature∴ power in hands of
legislature
2. Text- in context approach
The purpose or object of the legislation (legislative scheme) is the prevailing factor in interpretation.
The context of the legislation (social and political policy directions) is also taken into account to
identify the purpose of the legislation
Can only determine meaning of provisions in relation to the aims of the legislation concerned
Can use aids to interpretation from the start, not only when the plain meaning is ambiguous or
leads to absurdity
Where there is conflict between the plain meaning of the words used in a provision and the
purpose of that legislation, the meaning most consistent with the purpose is to be preferred
Context- based approach in which the purpose behind the legislation is principal determinant of its
meaning
If literal meaning + purpose conflict- meaning consistent with the purpose should prevail
Allows reliance on secondary + tertiary aids to interpretation from the outset
Mischief Rule: acknowledges the use of external aids- common law prior to enactment of legislation,
defects in the law, new remedies (solutions) and the true reasons for the remedies
The search for the purpose of legislation needs a purpose-orientated approach which recognises the
context of the legislation (i.e. the environment it was enacted in), and not only when the literal, text-
based approach has failed.
Provides a balance between grammatical + overall contextual meaning
Contextual environment (object + scope of legislation) must be taken into account
According to the text- in- context approach, the judiciary has inherent law making discretion during
interpretation→ courts may modify or adapt initial meaning of the text to align it with the purpose
Role of courts is more flexible
Such a law making function of the judiciary is not an infringement of the legislature’s
function- it is a logical extension of the powers of the courts
Eg. Jaga v Donges1950 (4) SA 653 (A)
, 3
Issue: Could two men, born in India, be deported from SA because of their conviction in SA and
receipt of a suspended sentence of imprisonment? [Legislation provided for deportation of people
not born in SA who had been sentenced to imprisonment]
Question: Did suspended sentence = ‘sentenced to imprisonment’
Majority: Yes- legislature uses ‘sentenced to imprisonment’ to exclude other forms of
punishment such as fines + whippings
Minority:In his minority decision, Schreiner JA set out the following interpretation guidelines:
From the beginning, the interpreter may take the wider context of provision (purpose and
range) into consideration
Irrespective of how clear or unambiguous the grammatical meaning of the legislation seems to
be, the relevant contextual factors (e.g. practical effects of diff interp, background of
provision) of the legislation MUST be considered
The wider context can sometimes be more important than the actual legislative text
Once the meaning of the text and context (language in context) is determined, it must be
applied, irrespective of whether the interpreter thinks the legislature intended something else.
First concrete effort to use text-in-context based approach in SA
Key Features of the Text in Context Approach
Provides a balance between grammatical and overall contextual meaning. Hence the object and scope
of the legislation (i.e., its contextual environment) is taken into account during the statutory
interpretation process.
Recognises that the judiciary has an inherent law-making discretion during statutory interpretation.
Courts may modify or adapt the initial meaning of the text to harmonise it with the purpose of the
legislation.
The role of the court is not limited to mere textual analysis and mechanical application of the
legislation.
The use of common law presumptions, as well as all the various aids to interpretation are important
tools in determining the scope and purpose of legislation.
Criticisms of this method
If the purpose of the legislation is evil, then a purposive interpretation will give effect to that evil
Multiple contending purposes create issues
Where do we find the “purpose”?
